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Photographic Copyright - what does it mean, who has it and who doesn't

By UrbanFox, written 1436439730.

Introduction

This article considers the issues of copyright, authorship, ownership and licence. These are concepts that are legally defined, in this case by the Copyright Designs and Patents Act, 1988 which can be found online at http://www.legislation.gov.uk/ukpga/1988/48 

In addition there is lots of useful information here: http://www.gov.uk/topic/intellectual-property/copyright

Note: This law applies in England and Wales, other jurisdictions may well do things differently. France in particular has different definitions of copyright.

Common Terms 

First off some terms we need to understand:

  • Copyright
  • Authorship
  • Ownership
  • Licence

Copyright: From the OED, copyright is defined as "The exclusive right to reproduce an artistic work, or to authorize others to do the same." In practice this is only a neat dictionary definition, good for understanding the concept, but the only useful definition is that in law. In this case the Act states "Copyright is a property right which subsists ... in artistic works" (including photographs of course), the Act then goes on to state what the rights are, hence a complete legal definition is available.

Authorship (of copyright): is defined in the Act in the sense that the author of an artistic work is the person who creates it. In the case of some works this is obvious, eg a sculpture or a painting, but authorship of a photograph is not explicitly discussed. However the position in law is very clear, the author of a photograph is the photographer. 

Note that joint authorship is also defined as: "the collaboration of two or more authors in which the contribution of each author is not distinct from that of the other author or authors". It is conceivable that some photo shoots could be considered as collaborations, for example between photographer and model, photographer and make-up artist or all three. The best way to deal with potential issues of joint ownership is to agree things before the shutter is clicked. Further note that joint authorship only applies if contributions are not distinct, otherwise you have a series of indivdual works, not a joint work. Whether or not the MUAs contribution to an image is distinct from that of the photographer does not seem to be clarified in case law, so if you get into this argument you are heading for litigation! Getting it on paper before you start is the only way.

Ownership: is clearly aligned to authorship, however owners can change, whereas the author cannot. The critical concept in this case is first ownership, in other words who owns the copyright at the point of creation. Here the Act is also very clear, the person of first ownership is the author, unless he is an employee and is creating the work in the course of his employment, in which case the first owner is the employer. 

It is important to note that these definitions are the "default" ones, meaning that they apply in the absence of witten agreements to the contrary (excepting authorship). In other words if you want override any of these default positions, get it agreed in writing before the shutter is clicked.

A License: is defined as "a contractual agreement between the copyright owner and user which sets out what the user can do with a work." In practice this can only relate to those rights which are restriced by copyright, but it can refer to one or more of those rights and can be limited in time or other ways (for example, geographically). 

Acts Restricted by Copyright

This is the meat of copyright, if an act doesnt fall within these definitions, then its not covered by copyright. As stated in Chapter 2 of the Act, only the following acts are restricted:

  • to copy the work;
  • to issue copies of the work to the public;
  • to rent or lend the work to the public;
  • to perform, show or play the work in public;
  • to communicate the work to the public;
  • to make an adaptation of the work or do any of the above in relation to an adaptation.

Note that Chapter 3 states a whole series of acts that are not restricted, in other words things that can be done without infringing copyright. These include: making temporary copies, research and private study, criticism and review, educational use and so on. 

Moral Rights

Chapter 4 of the act defines certain moral rights. These are held by the author of a work and are distinct from copyright in the sense that they cannot be transferred (ie licensed). The moral rights are: 

  • The right to be identified as the author, provided this right is asserted beforehand (usually in writing).
  • The right not to have the work subject to derogatory treatment.
  • The right not to have a work falsely attributed to oneself as author 

In addition, there is a moral right relating to work commissioned for private or domestic reasons, where the person commissioning the work has the right for the work not to be exhibited, shown in public or to be communicated to the public. The classic example of this is the family portrait in the window of the photographers studio: unless the photographer has consent, he is in breach of the moral rights of the family. Or in a more modern setting, if you ask your boyfriend to take nude photos of you, then dump him and he sticks them on Facebook, he is in breach of your moral rights.

Ownership and Licensing 

Ownership of copyright can be transferred in the form of a licence. There is no set form for a licence, but it must clearly relate to one or more of the acts that are restricted. Licenses are contracts and are therefore invariably written and signed both by the owner and the licensee. However case law allows for the concept of an implied license, meaning that no actual written contract exists, but the terms of the license are clearly implied by the circumstances.

The classic example of this is where work is commissioned, eg a company commissions a photographer to take images for a sales brochure. In this case, unless there is an agreement otherwise, the laws on authorship and ownership apply. This is often widely misunderstood, with commissioners believing they have ownership. However the case law says that in these circumstances the commissioners only have an implied license to use the images, and that this license is restricted to only those forms of use that are consistent with the terms of the commission. In other words you can copy the images in the sales brochure, but you can't print the images onto t-shirts (for example).

The other classic example is much more familair - TFP. Here the license is very clearly implied by the 'P', in other words the model may use the image for portfolio purposes only. This actually also applies if the model is given images after a paid shoot, in both cases the laws on authorship and ownership still apply, the model may only use the images under the terms of the implied license.