You paid the designer. You approved the drafts. The logo is on your trucks, your website, and the sign above your Brampton shop. So you own it, right? Not necessarily. In many cases, what you hold is permission to use the logo in the ways you and the designer contemplated, while the copyright itself stays with the person who drew it.
This comes as a surprise to many business owners, and it often surfaces at a bad moment: when you try to change agencies, sell your business, register a trademark, or stop a former contractor from reusing your materials. The fix is usually simple and inexpensive if handled at the start, and more awkward afterward.
This article is general information and is not legal advice. Ownership can depend on the exact facts of how a work was made and what was signed, so have the actual documents reviewed if something important turns on the answer.
The Starting Point: The Author Owns It
Canada’s Copyright Act begins with a simple rule. Under subsection 13(1), the author of a work is the first owner of the copyright. Payment does not change this. A commission does not change this. Neither does the fact that the idea was yours.
That last point is a common source of frustration. Copyright protects the expression of an idea, not the idea itself. If you describe a concept to a designer and the designer draws it, the designer is generally the author of the drawing. You might have strong feelings about whose idea it was, but it is not usually what decides ownership.
Copyright arises automatically when an original work is created, without registration. Protected works include text, graphics, photographs, videos, music, software code, architectural drawings, and many other kinds of creative material. Generally, protection lasts for the author’s life, the rest of that calendar year, and 70 years after that, with exceptions.
There is no general “work for hire” rule in Canada of the kind that people may have read about in American contract templates. Using that phrase in a contract does not reliably accomplish what you expect here, which is a good reason to avoid relying on a template from another country.
Employees: The Employer Usually Owns, With Limits
Subsection 13(3) provides the main exception. Where the author is employed under a contract of service or apprenticeship, and the work was made in the course of employment, the employer is the first owner of the copyright, absent an agreement to the contrary.
So when your in-house marketing coordinator produces brochures during work hours as part of their job, your company generally owns the copyright. Still, each element of the test matters.
Is the person actually an employee? Workers treated as independent contractors do not fall under this provision. Calling a worker an employee on paper would not be enough either, if they are not one in reality.
Was the work made in the course of employment? A sales rep who, on their own time and initiative, builds a software tool to make their work easier is a harder case than a programmer hired to write that same tool. Doing it on company equipment or relating it to the business helps the employer’s position, but neither necessarily settles the question.
Is there a contrary agreement? Check the employment contract and any bonus or side arrangements.
Articles and contributions to newspapers, magazines, and similar periodicals have a special rule that reserves some rights to the author, absent agreement. A company with a publishing side will want to address it directly.
The practical response is an intellectual property clause in every employment agreement. It confirms ownership of work produced in connection with the job, assigns any rights that would not otherwise pass to the employer, and addresses moral rights, which are discussed below. For existing employees, changing a contract normally requires fresh consideration, so get advice on implementing it properly.
Freelancers and Agencies: Why Writing Is Essential
An independent contractor who creates a work for you generally owns it unless the copyright is assigned. A marketing agency in Mississauga, a Brampton wedding photographer who shot your corporate headshots, a web developer you found online, and a nephew who drew your first logo are all authors, or the employers of authors, in this sense.
Subsection 13(4) sets the requirement for transferring ownership. An assignment, or a grant of an interest by licence, is not valid unless it is in writing and signed by the owner of the right or a duly authorized agent. An invoice saying “logo design, paid in full” is not an assignment. An email saying “it’s yours” may not be enough either, and it will invite argument.
Without a written assignment, you are probably relying on an implied licence: the creator’s permission, inferred from the circumstances, to use the work for the purpose it was made. A logo commissioned for your business could likely be used for your business. But the scope may be uncertain. Can you alter it? Sublicense it to a franchisee? Hand the source files to a competitor of the designer? Sell it with the business? Those are exactly the questions that an implied licence answers poorly.
A short written clause should identify the work, assign all rights to your company once it’s paid for, deal with moral rights, and confirm that the creator has authority to give all of this. If the creator used stock images, fonts, or subcontractors, the agreement should address those as well, because the freelancer cannot assign what they don’t own. An agency, for instance, can only transfer what it received from its own subcontractors.
Photographs and Portraits: A Rule That Changed
Older advice on commissioned photographs is out of date. There was a time when a person who commissioned certain photographs, engravings, or portraits was treated as first owner in some circumstances. That provision was repealed in 2012. The photographer is now generally the first owner, as with other works.
The Act now includes a narrow protection. An individual who commissions a photograph or portrait for personal or domestic purposes and pays for it may use it for non-commercial, personal purposes unless agreed otherwise. That does not help a business. If your company hires a photographer for its team pictures, product catalogue, or an event at a Brampton banquet hall, your contract should spell out what you can do with those images, and in what media, for how long, and whether you can edit them.
Remember the people in the photos as well. Copyright in a photograph is separate from a person’s privacy and personality rights. A photographer may be able to assign the copyright, while you may still need permission or a release to use an employee’s or customer’s image in advertising.
Moral Rights: The Part You Cannot Buy
Copyright is a set of economic rights. Authors also have moral rights under section 14.1: a right to the integrity of the work and, where reasonable, a right to be associated with it by name or pseudonym, or to remain anonymous.
Here is why that matters to a business: moral rights cannot be assigned, but they can be waived. An assignment of copyright does not itself amount to a waiver of those rights. Even if you own the copyright in your logo, the designer might in theory object to a distorted version used in a way that prejudices their honour or reputation, or insist on being credited, if no waiver has been obtained.
A waiver in favour of your company, and anyone who later takes the rights from it, should appear in the same document as the assignment. Employee agreements should have it too, because an employer who is first owner under subsection 13(3) doesn’t automatically hold those rights either.
Why This Comes Up When You Least Want It
Copyright gaps tend to appear at specific moments:
- Sale of the business. A buyer’s due diligence asks for proof that the company owns its brand, website, and software. Gaps may reduce the price or delay a closing.
- Trademark registration. A trademark is a different right from copyright, but ownership of the logo design often gets examined in connection with it.
- Changing suppliers. A website developer refuses to hand over files, or claims that the code cannot be reused.
- A falling out. A former partner or contractor starts using the materials for a competing business.
- New uses. A logo designed for local signs is being used on national packaging, or a video made for your website is now used in paid advertising.
If copyright is infringed, the owner may claim damages and profits, or may elect statutory damages. For infringements for commercial purposes, these range from $500 to $20,000 per work, as the court considers just. If you are a Brampton business that lifted an image from a search engine for your flyer, this applies to you too. Using a photo from the internet without permission is a common, avoidable risk.
Registration and Records
Registration through the Canadian Intellectual Property Office is optional. It can still help, because a certificate is evidence that copyright exists and that the registered person owns it. Assignments can also be registered, and that may be useful in a priority dispute. Many small businesses choose to register only the works most central to their brand, such as software or a major creative asset.
Whether or not you register, keep the evidence: drafts, dates, the original files, contracts, invoices, and any signed assignment. In a dispute, the ability to show the chain of ownership from author to your company is usually more useful than anything else in the file.
Cleaning Up Past Work
Start by listing the important creative assets your business uses: logo, website, product photos, packaging, manuals, software, training videos, and social media templates. Next to each, write who created it and what you have in writing.
For the gaps, it is often enough to go back to the creator with a short assignment and waiver, possibly for a modest payment. People usually sign while the relationship is good. Trying a year later, during a sale, gives that person more leverage.
Going forward, use a standard short agreement for every freelancer and agency before work starts, and an intellectual property clause in every employment agreement. A review by our corporate law group can be combined with broader advice on your intellectual property and your contracts. The paperwork is short. Its value shows up on the day someone asks whether your business really owns what it thinks it owns.