Art Commission Agreement Template (Canada)

The 2012 change to commissioned photographs and portraits

Under the Copyright Act as it stood before the 2012 reforms, the copyright in a commissioned engraving, photograph or portrait belonged to the person who ordered it and paid valuable consideration for it. That provision was repealed, and the author is now the first owner in the ordinary way.

The repeal came with a transitional rule: the old subsection continues to apply to any engraving, photograph or portrait the plate or original of which was commissioned before the provision came into force. So the answer to "who owns this commissioned portrait" depends on when it was commissioned — and a wedding photographer or portrait painter working today owns their own work unless the contract says otherwise.

That is the reverse of the Australian position, where the commissioner still owns copyright in a commissioned portrait or private-purpose photograph. It also means Canadian templates written before 2012, and any imported from Australia, get Canadian ownership exactly wrong. This template states the current rule, notes the transitional position for older works, and then lets the parties allocate rights deliberately.

Moral rights: waivable, but never assignable

The Copyright Act gives the author the right to the integrity of the work and the right to be associated with it by name or pseudonym, or to remain anonymous. It then says something precise that most contracts get loose about: moral rights may not be assigned, but may be waived in whole or in part.

Two consequences follow, and this template builds on both. An assignment of copyright does not by that act alone constitute a waiver of moral rights — so a contract that transfers copyright and stops there leaves the moral rights fully intact, which is often a surprise to the client who thought they had bought everything. And where an author waives moral rights in favour of an owner or a licensee, any person authorised by that owner or licensee to use the work may invoke the waiver, unless the waiver provides otherwise.

So the drafting question is not whether to include a waiver but how wide it should be and whether it should reach downstream users. This template treats the waiver as a deliberate, switched-on choice with its scope written out — including whether it extends to the client's licensees and sublicensees — rather than a boilerplate line. That gives Canada a fourth distinct mechanism: the United States waives by signed writing identifying the work; the United Kingdom requires the paternity right to be asserted and waivers to be in writing; Australia allows no waiver at all, only a written consent; Canada allows a waiver, in whole or in part, but never an assignment.

Cancellation, approvals and the client's references

Most commissions that end badly end with a client changing their mind, not with a breach. This template gives the client an express right to cancel and prices it: the deposit is retained once work has begun, the artist is paid for work properly completed to the cancellation date, and a stated cancellation fee can be added. The mirror case — an artist who cannot continue — is handled with a refund of the unearned fee and the return of the client's material.

Approvals get a deadline instead of a mood. The client has a stated number of days to respond to a draft, an unanswered draft is treated as approved, and the number of included revisions is a number rather than the word reasonable. Delay by the client moves the delivery date rather than putting the artist in breach.

The client also warrants that it may supply its reference material and indemnifies the artist for claims arising from it. An artist's originality warranty protects nobody if the brief itself was infringing, and references are exactly where third-party rights enter a commission.

Taxes, AI and cross-border realities

Canadian commissions carry a sales-tax question that varies by province: GST alone, GST plus provincial sales tax, or a single harmonized rate, depending on where the artist is registered and where the work is supplied. The template requires the tax position to be stated rather than left to the first invoice, and asks for the artist's registration number where they are registered.

It also carries an optional restriction on using the artwork or any process files to train, fine-tune or develop machine-learning systems, or permitting a third party to. It is off by default because it is a term to negotiate, not one to slip past a client — but leaving it unaddressed in 2026 is a choice too.

Two practical Canadian points close the document. Where the client is in Quebec, language-of-contract requirements apply to consumer and adhesion contracts, so confirm what is needed before using an English-only agreement there. And where the artist and client are in different provinces, the governing-law and forum clause matters more than it looks: name the province whose law applies and whose courts have jurisdiction rather than leaving it to be argued.

Clause-by-clause guide

Specification of the artwork

Type, subject, style and references, medium, dimensions or format, and the client's intended use — the intended use drives the licence, so it is a term rather than a note.

Timeline, drafts and approval window

Start and delivery dates, milestones, and a stated number of days for the client to respond to a draft before it is treated as approved.

Revisions

A stated number consistent with the agreed specification, with anything changing scope, style, subject or intended use treated as a new request.

Fee, deposit, taxes and late payment

Total fee, deposit retained once work starts, when the balance is due, the GST, HST or PST position with any registration number, payment days and an interest rate.

Delivery, shipping and risk

For physical work, who packs, who ships, who insures and when risk passes. For digital work, formats, resolution and whether working files are included.

Copyright and grant of rights

Confirms that the author is first owner under the current Act, then grants a non-exclusive licence, an exclusive licence or an assignment, each on payment in full.

Older commissioned works note

Flags that the pre-2012 rule still applies to an engraving, photograph or portrait commissioned before the repeal, which matters for reproducing earlier work.

Moral rights

States that moral rights cannot be assigned, that an assignment of copyright is not by itself a waiver, and scopes any waiver — including whether it reaches the client's licensees.

Attribution and alteration

The credit line as a contract term, and whether the client may adapt the work, framed against the integrity right rather than assumed away.

Reference material and indemnity

The client warrants it may supply the references and covers claims arising from them.

AI and machine learning

Optional restriction on using the artwork or process files to train, fine-tune or develop AI systems, or permitting others to.

Cancellation and kill fee

An express client cancellation right with payment for work done and a stated fee, plus the position if the artist cannot continue.

Canadian legal checklist

Copyright is federal; taxes, language and consumer rules are provincial.

• Remember that moral rights cannot be assigned

  Moral rights may not be assigned but may be waived in whole or in part, and an assignment of copyright does not by that act alone constitute a waiver. Where an author waives in favour of an owner or licensee, any person authorized by them to use the work may invoke the waiver unless it provides otherwise.

  Copyright Act (Canada), section 14.1

• Apply the current rule for commissioned photographs and portraits

  The provision giving copyright in a commissioned engraving, photograph or portrait to the person who ordered it was repealed in the 2012 reforms, so the author is now first owner. The old rule continues to apply to works whose plate or original was commissioned before the repeal came into force.

  Copyright Act (Canada) - full text

• Write out the licence rather than labelling it

  State the permitted uses, the media, the territory, the term, whether the client may sublicense or assign, and whether the artist retains any use. An exclusive licence with a blank scope is the defect in most free commission templates.

• Decide whether a moral-rights waiver reaches downstream users

  A waiver in favour of a copyright owner or licensee can be invoked by anyone they authorize to use the work unless the waiver says otherwise. If the artist does not want that, the waiver must say so expressly.

• State the sales tax position for your province

  GST, HST or GST plus provincial sales tax may apply depending on where the artist is registered and where the supply is made. Say which applies, give the registration number where relevant, and issue compliant invoices.

• Cover the client's reference material

  An originality warranty from the artist protects nobody if the brief was infringing. Have the client confirm it may supply the references and indemnify the artist for claims arising from them.

• Check language requirements for Quebec clients

  Language-of-contract requirements apply to consumer and adhesion contracts in Quebec. Confirm what is required before using an English-only agreement with a Quebec client.

• Name the governing province and forum

  Where the artist and client are in different provinces, say which province's law governs and whose courts have jurisdiction, rather than leaving that to be argued after a dispute starts.

How to complete this commission agreement

1. Specify the artwork. Enter the type, subject, style and references, medium, dimensions or format, and the client's intended use.
2. Set the schedule and approvals. Give the start and delivery dates, the number of revisions included and the days the client has to respond to a draft.
3. Set the fee, deposit and tax position. Enter the total fee, deposit, balance terms, payment days, interest rate and whether GST, HST or PST applies.
4. Choose the grant of rights. Pick a non-exclusive licence, an exclusive licence or an assignment, then write out the uses, media, territory and term.
5. Decide the moral-rights position, then sign. Set the credit line, decide whether a waiver is given and how far it reaches, switch the AI restriction on or off, then download and sign.

Frequently asked questions

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