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I was in a building that is publicly accessible and I took a photo of paintings they had hanging on the wall.
Is it legal for me to post it on social media such as Facebook, or would this be copyright infringement?
Does it mater if someone was standing in the foreground of the photo?
The Copyright Act provides the freedom of panorama for certain works displayed in public in Canada but limits it to buildings, sculptures or "work of artistic craftsmanship" and do not apply to paintings and generally other two-dimensional works.
32.2 (1) It is not an infringement of copyright ...
(b) for any person to reproduce, in a painting, drawing, engraving, photograph or cinematographic work
(i) an architectural work, provided the copy is not in the nature of an architectural drawing or plan, or
(ii) a sculpture or work of artistic craftsmanship or a cast or model of a sculpture or work of artistic craftsmanship, that is permanently situated in a public place or building
However, taking a photo or even posting it may not be illegal if it is for private non-commercial purposes.
Taking a photo of a painting in a public space for private purposes without dissemination is not an infringement in Canada, even if the painting is the main subject. The Act (section 29.22) explicitly allows reproduction of works for private non-commercial purposes as long as the reproduction is based on an legal copy, the reproduction is not given away to others and no DRM measures were circumvented.
If a new work of creative nature is created by your photograph (i.e. the photo is not simply a substantial copy of the painting), another non-commercial exception may be applicable. Section 29.21 allows an individual to use an existing work [...], which has been [..] made available to the public, in the creation of a new work [...] in which copyright subsists and for the individual [...] to authorize an intermediary to disseminate it [...]" provided certain conditions are fulfilled (non-commercial purpose, legal copy, source is acknowledged, no substantial adverse impact on artist's ability to gain benefits from their works). This section is explicitly created to allow individuals to post user-generated contents on social media that incorporates parts of protected works (e.g. incidental background music or many memes in general).
Copyright infringement happens when you make a copy. In the case of a photograph, that’s when you take the picture. Posting it on Facebook, is also an infringement, and might make the copyright owner aware of a violation but a violation has already happened even if no one ever looks at your picture.
It is copyright violation is your picture is a copy of or a derivative work of the painting.
So, if your photo is of the painting such that the painting is the primary subject of it, then it’s a copy and, subject to exceptions (e.g. study) is a copyright violation.
If your photo uses the painting in a significant way to create a new work, for example, juxtaposing your friend so they appear to be kissing the Mona Lisa (only that particular painting is public domain so copyright doesn’t apply), then it might be a derivative work. This gets complicated by jurisdiction. For example, in the US, making the derivative is the violation, in Canada, the derivative must be multiplied so posting it is the violation. Again, all subject to exceptions.
However, if the painting is incidental background to the photo, for example, “here’s Sam the Philistine out of place with a lot of works of art”, then it is neither a copy nor a derivative work.
