Canva – who owns the artwork created by users?

The general rule about ownership of copyright in a literary or artistic work is that copyright vests in the ‘original author’, as per section 35(2) of the Copyright Act 1968 (Cth) (Copyright Act).^[1]  From there, ownership depends on whether or not the original author is doing the work within the scope of their employment, in which case the works belong to the employer unless the author is an individual contractor, whereby they retain ownership regardless.^[2]  This article discusses ownership of copyright in the context of the popular graphic design platform-as-a-service Canva.

There are ten (10) agreements (Canva Agreements) that govern the customers’ use of Canva, as follows:

• Acceptable Use Policy;
• Affinity Additional Terms;
• AI Product Terms;
• Enterprise Subscription Agreement;
• Subscription Agreement;
• Content License Agreement;
• Contributor Agreement;
• Data Processing Addendum;
• Privacy Policy; and
• Terms of Use.

This article discusses the Terms of Use, Content License Agreement and AI Product Terms. 

The following terms are relevant to the ownership of copyright works as defined in the Canva Agreements:

• User Content is defined as any content uploaded to Canva by the User; and
• Licensed IP means content accessible to Users provided by Canva and its associated content providers.

Creation of artistic works by users of Canva

There are several different scenarios that apply to a user creating an artistic work in Canva.  We consider the major scenarios below.

What if the user creates an image using Canva from scratch?

Anyone who uses Canva automatically becomes a user who is subject to the Canva Agreements (User).  Canva’s Terms of Use states at paragraph 4a that Users “own all rights, title and interest in and to… User Content”.  Users automatically grant a license to Canva over their work, however the Terms of Use state that this will be exercised “solely to the extent necessary” and only to the User that created it.^[3]

If a User creates an original artistic work entirely from scratch using tools, such as drawing shapes, selecting fonts, inserting text or uploading their own images, then they are the original author, and it follows that they are the owner of any copyright.  Since the work is not a derivative of or an adaption of Canva’s intellectual property, the user retains full ownership over the design.  This concept is no different to a licensed user of Adobe Photoshop creating the same work using that program.

What if the image created incorporates Canva’s licensed IP?

If the User creates an artistic work that incorporates Licensed IP, such as stock photos, icons, fonts, or templates, then copyright ownership becomes more complex.  While the User has the right to use the new arrangement or combination of elements they created, the design does not attract copyright protection because it is not an original work.

Instead, the User is granted a “perpetual, non-exclusive, non-transferable worldwide license” to use those elements under Canva’s Content Licence Agreement.^[4]  This license permits designs incorporating Canva’s intellectual property to be used for personal, promotional, resale, relicense and other distribution purposes.^[5]

Despite the breadth of permitted uses, all final designs remain subject to licensing restrictions as Canva retains ownership of its intellectual property, and User’s rights are derivative and conditional.  Users cannot “sub-license, re-sell, rent, lend, assign, gift or otherwise transfer or distribute” the standalone content or the rights to the content,^[6] nor can any part of the content be trademarked.^[7]

This means that any content created in Canva that incorporates pre-existing designs or design elements can be used by the User but cannot be subject to copyright protection.

What if a User asks the AI feature to create an image?

When Canva’s Artificial Intelligence (AI) features, such as the text-to-image tool, are utilised to create a completely new image, the resulting output is subject to the AI Product Terms. 

According to these terms, the User retains all rights of both the Input, such as their written prompts or uploaded files, and the Output, usually an AI-generated image, to the extent permitted by law.^[8]  Currently, the Copyright Act does not extend intellectual property protection to any computer-generated work as the AI ‘creation’ process lacks the required elements of an identifiable ‘author’ and ‘independent intellectual effort’.^[9]  Therefore, Canva could not claim or enforce ownership over works generated by its AI system even if it sought to. 

Canva’s AI Product Terms state that it “will not make any copyright ownership claim over your Input or Output” and that the created artistic works may be used “for any legal purpose” as long as the User does not violate the following requirements to:

“Manually review each Output before sharing or while streaming;

Attribute the content to your name or your company;

Indicate that the content is AI-generated in a way no user could reasonably miss or misunderstand;“

Once again, the result is that AI-generated designs created on Canva’s platform have no restrictions on use, but ownership does not vest in the User or any other entity.

What does this mean for businesses using Canva?

Businesses need to be careful when creating artistic works using Canva if they intend to base applications for trade mark protection on such images if they incorporate Canva’s background IP.  The same care needs to be taken if attempting to license artistic works created in Canva.

Links and further references

Canva Terms of Use

Canva Content License Agreement

Canva AI Product Terms

Legislation

Copyright Act 1968 (Cth)

Cases

IceTV Pty Limited v Nine Network Australia Pty Limited [2009] 239 CLR 458

Further information about copyright protection

If you need advice on intellectual property rights and Canva’s terms of use, please contact us for a confidential and obligation-free discussion:

Disclaimer

This article contains general commentary only.  You should not rely on the commentary as legal advice.  Specific legal advice should be obtained to ascertain how the law applies to your particular circumstances.

[1] Copyright Act 1968 (Cth) s 35(2).

[2] Copyright Act 1968 (Cth) s 35(6).

[3] Canva, Terms of Use clause 4(a).

[4] Canva, Content License Agreement clauses 2, 3.

[5] Canva, Content License Agreement clause 5.

[6] Canva, Content License Agreement clause 9(1).

[7] Canva, Content License Agreement clause 9(2).

[8] Canva, AI Product Terms.

[9] IceTV Pty Limited v Nine Network Australia Pty Limited [2009] 239 CLR 458 para 48.

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