Copyright Update for Canadian Photographers

Generative AI, Noteworthy Infringement Case and Artist’s Resale Right

Jason Marino
March 16, 2026

The following is a brief update on recent copyright developments of interest to Canadian photographers, covering (1) Canadian and U.S. copyright in the context of generative AI, (2) a noteworthy Canadian copyright infringement case involving photographers, and (3) the emerging Canadian artist’s resale right, along with key takeaways and practical considerations for photographers.

Note that nothing in this update constitutes legal advice or a legal opinion on any issue. Seek legal advice if you need it. Refer to the full disclaimer at the end of this update.

1. Copyright and Generative AI: Canada and U.S. Updates

Canada: Policy moves, legal uncertainty

Canada’s federal Copyright Act hasn’t yet been amended to address generative AI, but the groundwork is being laid. The federal consultation on “Copyright in the Age of Generative AI” has wrapped up, and the government’s “What We Heard” report shows just how alarmed creators are about mass scraping of images for AI training without consent or compensation.

Three big issues were flagged: (i) using copyrighted works for AI training (text and data mining); (ii) authorship and ownership of AI‑generated outputs; and (iii) liability when AI outputs infringe copyright. Artists and advocacy groups have been clear in their position that any solution must keep human creators front and centre and not quietly normalize unlicensed use of their work in training datasets.

At the same time, a live Canadian controversy asks whether an AI system can be treated as an “author” at all. A copyright registration known as the Suryast registration, listing a generative‑AI system as author, has been challenged in the case of CIPPIC v Sahni on the grounds that the Copyright Act presumes human authorship and that AI‑generated works lack the required “skill and judgment.” It is worth noting for proper context that, although registration was granted in this case, the Canadian Intellectual Property Office (CIPO) does not substantively assess or verify copyright applications; registration is granted automatically so long as the application is complete and the required fee is paid. As a result, if someone takes the view that a copyright registration contravenes the Copyright Act, they must challenge the registration in Federal Court, which is what CIPPIC is doing in the Suryast case. Until the courts speak definitively on this issue, the safest view is that authorship remains human‑only, but the statute’s silence keeps this a hot topic for the time being.

Takeaways for photographers: Right now, if you are using AI as part of your post‑production or compositing workflow, treat it as a sophisticated editing tool, not a replacement author. Keep a record of your creative decisions—what you directed the tool to do, what you accepted or rejected, and the further post-production creative steps you took (such as in Photoshop)—so if your work is ever challenged, you can evidence the human creativity you applied.

United States: A clearer line on human authorship

The U.S. has drawn a much sharper line. In January 2025, the U.S. Copyright Office released Part 2 of its AI report, squarely reaffirming that only works created by humans qualify for copyright. Purely machine‑generated images do not. AI‑assisted works may qualify— but only to the extent of the human’s “creative expression”.

The Office is blunt that prompts alone usually will not cut it, as they “do not provide sufficient human control” to make the user the author of the output; the Office is looking for human selection, arrangement, or modification that goes beyond clicking “generate” or “imagine”.

Takeaways for photographers who license into the U.S.: If you are registering AI‑assisted works in the U.S. Copyright Office (which, unlike Canada, does substantively assess applications for registration), you’ll need to disclose the AI component and emphasize what you did, creatively, as the human author. And because training‑data rules are being actively debated, this is a good time to pay attention to whether your images show up in AI products—individually, you have limited leverage, but collectively, photographers can influence how “fair” training rules are defined.

2. Copyright Infringement Case: Food Photographers v. Food‑Delivery Platform

The case of Matsumoto v. Canuck Eats Inc. (Federal Court, 2025) reads like a modern cautionary tale for any photographer whose images end up on a commercial website without permission.

Facts

Two professional food photographers and influencers, Shoichi Matsumoto and Shen Chen, create original food photographs and share them on their blogs and social media. Canuck Eats, a Canadian food‑delivery service, used some of those images on its website without permission.

Matsumoto discovered the uses, sent a demand, and when the company didn’t meaningfully resolve the issue, he sued in the Federal Court of Canada. Chen joined with his own claim. The defendant didn’t defend, so the photographers sought default judgment.

Legal issues

The Court had to decide:

Did Canuck Eats infringe copyright by reproducing the photos on its website and making them available online without authorization?
Were the photographers’ moral rights (including the right of attribution and the right to integrity) violated?
Most critically for one plaintiff: who actually owned the copyright—Chen personally, or his company, Just One Cookbook?

Decision

The Court found that Canuck Eats had infringed Matsumoto’s copyright by reproducing his photographs without permission. He was awarded statutory and punitive damages of roughly $10,000 in total, including $3,000 per infringing photo (less than the usual licensing fees or production costs he typically charged clients for his work) plus an additional $2,000 in punitive damages, along with legal costs. In arguing for punitive damages, Matsumoto alleged that Canuck Eats’ actions were deliberate, profit-driven, and continued over a prolonged period. In awarding punitive damages, the Court acknowledged that such damages are intended to condemn the conduct and discourage similar behaviour by others. Moral rights damages were not awarded, given insufficient evidence.

Chen’s claim, however, was dismissed. The Court concluded that he personally did not own the rights; his company did. Because the true copyright owner was not the named plaintiff, he lacked standing to sue.

Takeaways

This case confirms that unlicensed commercial use of your online images is typically a straightforward infringement that can attract meaningful statutory and even punitive damages in Canada—especially where the defendant simply ignores the claim. But it also shows how ownership and standing can derail a photographer’s case even if the copying is obvious.

Practical steps for photographers

Lock down ownership on paper. Decide whether copyright sits with you personally or with your company, and properly document that choice and any transfers.
Monitor and preserve evidence. Use reverse‑image search and regular checks of key platforms; when you find an infringement, capture dated screenshots and URLs and keep backups.
Put your rates and losses on record. In demand letters and, if needed, court materials, show your usual licensing fees so a judge has a concrete benchmark when awarding damages.

3. The Emerging Artist’s Resale Right in Canada

An “artist’s resale right” (ARR) gives visual artists a royalty each time their original works are resold on the secondary market, typically through galleries and auction houses. Many ARR regimes around the world cover original works and certain limited editions, including fine art photography, above specified price thresholds. More than 90 countries around the world currently legislate this right.

For photographers whose prints move in the art market, ARR is about finally participating in the upside when early work later sells for higher prices.

Canada’s 2025 federal budget commitment

In the 2025 federal budget released on November 4, 2025, the government announced its intention to amend the Copyright Act to introduce an ARR. The stated goal is to ensure Canadian visual artists receive a royalty when their works are resold through eligible intermediaries such as auction houses and galleries.

Visual artist organizations like CARFAC (Canadian Artists’ Representation/Le Front des artistes canadiens) and RAAV (Regroupement des artistes en arts visuels du Québec) have welcomed the move, noting that visual artists are among the lowest‑paid creators and that ARR would provide an important supplemental income stream.

Expected scope and mechanics

The detailed legislation is still to come, but commentary and international models give us a good sense of where this is headed. ARR will likely:

Apply to original works of visual art and qualifying limited editions, a category that should include fine art photographic prints once details are finalized.
Trigger royalties only when resale prices clear a monetary threshold, and only when sales run through professional art‑market intermediaries; informal private sales may sit outside the scheme.
Follow a life‑plus‑term structure (similar to the UK/Europe), with specific percentages and caps to be defined in the eventual legislation.

Status, timing, and what to do now

ARR is currently a firm policy commitment, not yet a live right. We still need: a bill amending the Copyright Act, debate and committee work, and regulations that nail down details like thresholds, rates (a 5% royalty is common in other countries), and how royalties will be collected and distributed.

No in‑force date has been announced, but artist groups are preparing to work with government on the design and implementation once draft text is released.

Steps for photographers in the art market:

Start treating provenance as a revenue-generating asset. Document edition sizes, signatures, certificates, and chains of ownership so future resales can be tracked and linked back to you.
Engage through associations. Work with organizations that are already actively engaged in promoting the ARR in Canada, such as PPOC, CARFAC and RAAV, so that photography‑specific issues—editioning, digital prints, hybrid works—are properly reflected in the ARR rules.
Review your gallery contracts. As ARR approaches, ensure your agreements with galleries and dealers align with the coming framework and don’t quietly shift ARR‑related costs or responsibilities onto you in unfair ways.

About the author: Jason Marino is a lawyer and an internationally awarded, nationally accredited professional landscape photographer. He lives and practices law in Alberta, Canada, which is also his primary photographic playground. You can view his work and connect with him here:

Website: https://www.jasonmarinophotography.com

Instagram: https://www.instagram.com/jasonmarinophotography/

Disclaimer: The content of this post is provided for informational purposes only, as a brief, general guide to the subject matter. It does not constitute legal advice or a legal opinion on any issue, and readers should not under any circumstances rely on, or act on the basis of, any of the content in this post. Readers should seek legal advice in their jurisdiction regarding their specific circumstances.