Copyright In Photography

8/14/2019 Copyright In Photography

1/20

CCooppyyrriigghhtt iinn PPhhoottooggrraapphhyy


2/20

Front page images copyright G Doonan 1999


3/20

This booklet is a brief guide to UK copyright specifically relating to photography. It attemptsto reflect the current situation in what can be a complex and changing subject area andshould not be considered as legal advice.

What is copyright?

Copyright is an automatic legal rightwhich protects original literary, dramatic,musical and artistic works. This includesamong other things, sound recordings,broadcasts, photography, film andcomputer programs. It does not protectinventions or the names you give to yourproduct or service. It also does notprotect an idea, but rather the tangibleexpression of the idea in some physicalform a photograph is one example of

that expression in physical form.

Why is copyright important?

Copyright enables those who havecreated a work, such as a photograph oran image, to be paid for their creativityand to be acknowledged as the creator(see section on Moral Rights).Otherscan only use copyrighted work with thepermission of the copyright owner. Theowner will often charge for this

Copyright G Doonan 2009 permission. Copyright owners can alsocontrol how their work

is used ie how it is copied, distributed, altered, transmitted, broadcast or performed.Anyone who uses a copyright work without permission can be guilty of infringement andaction could be taken against them.

Do I apply for copyright?

No. Copyright is an automatic right which exists as soon as the work to which it is relatedexists - providing it is recorded or fixedin some way (this may for example be in the form ofa photograph, a film, video or DVD recording). For example as soon as you take aphotograph you have copyright in that photograph.

Is copyright protection enforced by law?

The Copyright Designs & Patent Act 1988 forms the basis for copyright protection in the UK.Copyright law is an attempt to balance the interests of those who create the particular workor composition and those who want to use it or enjoy it. Other laws can affect what can bedone with a particular work as will be described in later sections.

How long does copyright last?

In the UK, copyright for literary works generally lasts for 70 years after the death of theperson who created the copyright work. In the case of films, it lasts for 70 years after thedeath of the principal director, the writers of the screenplay, the writers of the dialogue or thecomposer of the films music (whichever of these happened last). In each case this term is


4/20

calculated from the end of the calendar year. Copyright on sound recordings and broadcastslasts for 50 years from the end of the calendar year of publication or broadcast.

Calculating whether a particular work is currently protected by copyright can become quitecomplex as over the years different rules have applied at different times and often it isdetermined by the law in force at the time that the work was created. The term forphotographs is currently 70 years after the death of the creator.

What are economic and moral rights?

Copyright owners have both economic and moral rights. Economic rights are concerned withthe copyright holders right to make money out of their work. Copyright also gives the creatorspecific moral rights which in most (but not all) cases last as long as the copyright in thework. These rights, which are largely to do with protecting the reputation of the creator, are:-

Paternity right the right to be identified as the author or creatorof the work and toprevent anyone else from doing so. Wherever a photograph is shown the

photographer has the right to a credit indicating that it is their work. Unlike othermoral rights this is not an automatic right. The creator of the work must state inwriting that they wish to assert this right. Very oftenthe phrases All rights reserved or The authorwished to assert his / her moral rights will indicatethat this has been done.

Attribution right- the right to object to falseattribution to prevent anyone else claimingauthorship of the work.Unlike the other moral rights,this right lasts for 20 years after the death of theperson who creates the work.

Integrity right the right to object to derogatory

treatment. Any use of the work which distorts it orcould damage the copyright owners reputationinfringes their Integrity right. This can include anydigital or manual manipulation or alteration of imagesincluding cropping. If for example someone were toalter an original photograph to make it

Copyright G Doonan 1980 offensive, or an image was used to advertise aproduct which the original copyright owner did not

approve of, then moral rights could be infringed. Privacy right This right actually belongs to the subject of the photograph rather

than the person taking it. It is the right not to have the work made available to thepublic if it was initially commissioned for private or domestic purposes for examplewedding photographs or family portraits.

Moral rights can not be licensed or assigned. The original creator of a work will retain themoral rights even if copyright is assigned (ie sold or transferred) to someone else. So in thissituation the economic and moral rights of a photograph may be held by different people.

Moral rights can be passed on in a will or left to the authors estate if there is no will.Obviously it is a good idea to assert moral rights in any contract.

Are there situations where moral rights dont apply?

Moral rights dont apply to photographs taken for the purpose of reporting current events orphotographs published in newspapers, magazines, periodicals, and collective works such asdictionaries or yearbooks although these publications may still be willing to give a credit to


5/20

Copyright C Doonan 2008

the photographer. Moral rights dont apply to photographs taken by employees for whom

taking photographs is a normal part of their duties. They also do not apply to whollycomputer-generated works.

Can moral rights be waived?

Sometimes clients may request a photographer to waive ie give up moral rights in aphotograph. Moral rights can be waived if done so in writing and signed by the originalrightsholder. If moral rights are waived, the photographer loses all control over how the work isused so these rights should not be given up lightly. Obviously there is a potential danger ofsubsequent misuse or false claims of authorship reflecting badly on the original creator.Remember that, as stated above, you must assert your moral right in order to be identifiedas the creator of the work.

What is Revived copyright?

In 1996 following an amendment to the 1988 Copyright Designs and Patent Act copyrightterms changed. Up to this point copyright in the UK had generally lasted 50 years after theend of the year in which the author of the work died. After 1st January 1996 this wasextended to 70 years which meant that some works in which copyright had expired wereback in copyright or revived. The copyright owner in this situation can not refuse a licenceto someone wishing to use the revived work providing the copyright owner is givenreasonable notice and paid a reasonable royalty.

How is copyright infringed?

Copyright comprises a collection of rights basically copying, issuing to the public (includingrenting), performing, broadcasting, storing by electronic means, posting on the internet or


6/20

adapting the work. Copyright is infringed if any of these acts are carried out without thecopyright owners permission. When this happens, the copyright owner can take legal actionagainst the person or organisation who is infringing. Such infringement requires that asubstantial part of the work is copied or used without permission by someone else.

Anyone who gains permission to use an item which is in copyright needs to be clear whatits going to be used for. If its ambiguous and its used for something not explicitly agreed,this could be infringement. Where multiple copyrights exist, each one needs to be clearedbefore it can be used.

What exactly does substantial mean?

It is important to understand that substantialdoes not necessarily mean large. A very smallpart of the work which is distinctive or significantwould be regarded as being substantial by acourt.

In 2001 Panini, a company which producessticker albums of photographs of PremierLeague footballers, was taken to court by thePremier League. Panini produced the stickerswithout the permission of the Premier Leagueand the Premier League claimed that as thephotographs showed Premier League andindividual club badges on the players shirtsPanini was infringing copyright in those badges.Panini claimed that these badges were a smalland incidental part of the pictures but the court

found that though they may be a small part ofthe whole picture they were a fundamental partof what the players look like and thereforesubstantial.

Is it a criminal offence to infringe copyright?

Deliberate infringement on a commercial basisis a criminal offence for example producing,or distributing, or selling pirate copies of CDs,DVDs etc or assisting someone else to do so.Such an offence can be punishable by fines Copyright G Doonan 2007

and / or a prison sentence.

Is there a register of copyright?

No. Because it is an automatic right which is free, there is no register of copyright orapplication system in the UK. It is therefore important to be able to prove as far as you canwhen the work first existed. A relatively simple way to do this is to place it in a sealedpackage, sign your name across the seal, post a copy to yourself by Special Delivery(thereby obtaining a dated receipt) and leave the envelope unopened when you receive it.Alternatively, you could deposit a copy with a bank, building society or solicitor and onceagain, obtain a dated receipt. If a copyright case came to court, the package would beopened by the judge.


7/20

Copyright C Doonan 2008

Do I need to mark my work in any way?

In the UK It is not an essential requirement to do this although some other countries dorequire the work to be marked. However if you do not put a copyright notice on your work itmay result in you not being able to claim damages for any subsequent infringement so it isgood practice to use the followed by your name and year of creation to indicate clearlythat you intend to assert your rights - to warn others off and maximise the legal protectionavailable to you. It is a good habit to get into at an early stage, particularly when you aredealing with anyone who is not connected with the creation of the work.

Some take the view that its good practice to include the phrase All rights reserved toindicate that moral, as well as economic rights are being asserted. Other information may

also be helpful such as indicating in what circumstances, if any, the work may bereproduced. Providing your contact details can enable someone who is seeking permissionto use the work to do so. How much additional information is given may, of course, bedetermined by how much space is available, but some indication of ownership may avoid theproblem of orphan works (this is described in more detail in a later section).

How do I mark my work?

Copyright notices can be placed on such things as negatives, mounts etc. Where digitalimages are concerned more options are likely to be available. Various software packagesenable you to place a copyright notice across the centre of an image while digitalwatermarking embeds a marking within the image itself.


8/20

Are there organisations which can help you to prove when a work first existed?

There are private organisations such as the UK Copyright Service which offers to add yourwork to their own register for a charge, in order to help you establish when the work firstexisted. As such registration is not required by law you would obviously need to balance theadvantages in doing so against the costs involved.

Copyright G Doonan 2009

Can copyright change hands?

Copyright is a property right it is a form of intellectual property and like any otherproperty, copyright can be transferred, bought, sold, inherited or used as collateral. This isdescribed in more detail in the next section.

What is Licensing & Assignment?

Although the copyright owner has the right to prevent anyone using their work, it is commonfor the owner to licence or assign their rights to others in order to fully exploit their creations.This is usually done in one of two ways:-

Licensing: In the case of licensing the copyright owner allows others to use their work inreturn for payment but the owner keeps the rights. It is more flexible than assignment.Several people can be given a licence at the same time. A licence should clearly indicate theterms of the agreement - such as how long it lasts, whether its exclusive, the number oftimes it can be used, the geographical territories it relates to and the media it can be used in

for example whether it can be displayed on the internet.

Assignment: If the ownerassigns the rights (all or some) to someone,the owner is

transferring ownership to the other person and no longer has a say in how the work is used.(ie they are selling the rights) Once again, this assignment could be limited by time or to partof the rights. It is possible to assign works which will be created in the future so that an


9/20


individual agreement does not have to be set up each time. This is known as futureassignment. This tends to be used when the copyright owner has an on-going relationship

with the client. It is very important to understand, however, that in this situation the originalcopyright owner would be signing away future rights.

Licences and assignments should be made in writing and signed by the owner. It would beadvisable to include an assertion of moral rights (which can be waived but notassigned).The copyright holder has the right to decide how the work is used and can refuse to allowuse for specific purposes. The broader the licence, the more a client should have to pay andsimilarly an assignment is likely to be more expensive than a licence. It is important to readany contract carefully and be clear about any licensing and assignment terms which areincluded. Similarly when placing photographs on any web sites terms and conditions ofthose sites should be checked carefully. If the photographer states their own terms beforeaccepting a commission this may pre-empt any subsequent difficulties.

Does copyright protect material on the internet?

Material on websites is subject to the same copyright protection as material anywhere else,and once again it is a good idea to mark each page with the symbol, year and copyrightowners name. Anyone copying, using or downloading copyright material from a websiteinfringes copyright.

It is worth bearing in mind that it can be difficult to enforce copyright on material you havemade freely available on a website particularly as the site can be accessed from anywhere inthe world. Using watermarking as previously mentioned may be useful as it may enable youto scan the internet to see where an image may be being used without permission.


10/20

What is a Takedown Notice?

If the copyright owner finds an infringing copy of their work on the internet, the first step isnormally to contact the person or organisation who is responsible for the content of the site.If this does not gain a satisfactory response, a formal Takedown notice can be sent to theISP provider requesting removal of the work.

Does copyright protect my worksabroad?

Most major countries are members ofinternational copyright conventionsrecognising copyright which hasoriginated in any member country.However there are a few countrieswhich do not do so. Some countries,such as the US, advise registration

there even though it is not legallyrequired. If you do not follow thisadvice you would not be able torecover damages for anyinfringement.

Who owns copyright in aphotograph?

Initially, copyright belongs to theperson who creates the work. In thecase of photography it is normally the

person who takes the photograph(unless theres a written contractsaying otherwise and signed by thephotographer).

What if the photographer is beingpaid by someone else to take thephotographs?


In most situations this will not affect ownership of the copyright it is the person creating thework and not the person paying for the work who owns copyright.The 1988 Act brought this

in, so for photographs taken before1st August 1989 copyright belonged to the personcommissioning the photograph or the owner of the photographic film.

What if the photographer is working for someone else?

If the photographer is an employee and takes photographs as part of their normal duties inthis employment, then the copyright will belong to the employer(unless theres a contractstating otherwise). If the photographs were not taken in the normal course of their duties, orthe photographs were taken on a freelance basis, the photographer retains the copyright. Itis important that all contracts are studied carefully and appropriate legal advice taken wherenecessary.

What if more than one person is creating the work?Copyright initially belongs to the original creator for example the person who takes a


11/20

photograph. However, this might not always be clear. Creating a photograph can involvedecisions on composition, lighting and exposure among other things. If two peoplecontributed to this and their contributions are not distinct it is assumed that ownership isequally shared (and lasts for 70yrs after the death of the last surviving author).

For someone else to use a shared work permission would be needed from both creators.Any waiver of moral rights by one creator will not affect those of the other creator.

If a client pays a photographerfor a DVD of photographs doesthe client then own thecopyright?

No. In the same way that owninga music CD does not give you theright to copy the music on it, aDVD of photographs does not

give you copyright in thephotographs on the DVD.

If a client wants to sell or maketheir own copies ofphotographs they havereceived from a photographerdo they need permission?

Yes. Copyright belongs to thephotographer. This will only change Copyright G Doonan 2009if there are terms in the contract to

allow this.If a photographer is commissioned to takephotographs of a wedding is he free to use the photographs however he likes?

The Copyright Designs andPatent Act 1988 gives the clientthe right not to have photographstaken for private or domesticpurposes issued to the public,exhibited or broadcast withouttheir permission. Therefore,

although the photographer ownsthe copyright in this situation, theclient can control how they areused. It obviously makes sensefor photographer and client toagree from the outset how theimages are to be used to avoiddifficulties later on.

If a photograph is taken of anexisting work such as apainting, who owns the

copyright in that photograph?

Copyright will normally belong tothe photographer. This copyright



12/20

is totally separate from that of the painting. However, if the painting is still in copyright andthe photograph is taken without permission the photograph will infringe the copyright in thepainting. This means that although the photographer owns the copyright in his photographhe can not use it.

In 1999 the Bridgeman Art Librarytook legal action against the CorelCorporation for copyright infringement.Corel had used some of Bridgemansphotographs of paintings withoutpermission. In a controversial decisionthe judge in a New York District Courtruled that a slavish recreation of awork (such as a photograph) is notoriginal and therefore not covered bycopyright. Such a case has not beentested in a UK court and some have

expressed the view that under UK lawa different opinion would be reachedas the photograph would be seen as aseparate and original work. It is worthbearing in mind that areas such asthis may not be clear.

If the photograph is retouched ordigitally altered can this avoidinfringement?

No. Doing so without permission of

the original copyright owner will notavoid infringement.

What if the photograph is alteredsignificantly?

Copyright G Doonan 1980Any retouching of some one elsespicture or photograph without permission infringes copyright. If retouching is carriedout withthe permission of the original copyright owner and as a result the picture ischanged significantly from the original this could create a second and separate - copyrightin the retouched work. This would not affect the copyright ownership of the original work. Inorder to use such a work permission would have to be obtained from both copyright owners.

Simply a change of medium does not justify copying.

Are there situations when I do not need permission to use someone elses work?

Copyright works can only be used by others without the owners permission in certainspecific, and limited circumstances. There are three exceptions where this is possible -using the work for private study, for use in a review or in a news report. In each situation ithas to be used in a fair way and the owner must be acknowledged.

Photographs are excluded from the reporting of current events exception in other wordsusing photographs in a news report is not fair dealing.

Making a copy of a work for the sole purpose of advertising its sale may not infringecopyright such as a photograph of a painting in a sale catalogue.


13/20

What are orphan works?

It can be difficult to determine who the copyright owner of a particular picture is. If the work isstill in copyright and the author is unknown, it is called an orphan work. This situation maysometimes result from the newspaper, magazine or publication where the photo is displayednot crediting the author of the picture. Format shifting, where a work is copied from oneformat to another may also be a cause. Changes in copyright law resulting in revivedcopyright sometimes create orphan works. A lack of information provided by the copyrightowner can also result in an orphan work.

It may be possible to reproduce an orphan work providing the person wishing to make thecopy can provide enough evidence of a reasonably diligent search to find the original rightsowner. Unfortunately diligent has not been defined a situation which can leave both thecopyright holder and the person wishing to reproduce the work in a difficult position.

What is Publication right?

If a work is first published after its copyright has expired, the first person who publishes it inany way (including electronically) or makes it available to the public will own PublicationRight. This right works in the same way as copyright but lasts 25 years from the end of theyear of publication. If the publisher is different from the current owner of the actual physicalwork then the owner of the work has to give permission for publication.

Care needs to be taken. For example if someone owns an out-of-copyright photographwhich has not been made available to the public and they allow someone else such as agallery to display it then the gallery, and not the owner of the photograph will havepublication right.

Can I take a photograph of a trade mark?

A trade mark is a sign which distinguishes the goods or services of one person or companyfrom that of another, and often comprises words or a logo. For example many supermarketsand other high street businesses have trade marked their names and often logos or slogansto go with them.

A photograph of a trade mark couldinfringe the rights of the trade markowner if it is the main focus of thepicture, particularly if it gives theimpression that it was produced by theowner or the purpose is to use the mark

to gain commercial advantage. If a trademark is included incidentally in aphotograph such as a street scene it isunlikely to cause problems.

Is there copyright on buildings?

There would be copyright in thearchitectural drawings. The CopyrightDesigns & Patent Act states thatgenerally copyright in such a work is notinfringed by making a photograph or film

of it. However, as described below,there are other issues particularly if the


14/20

image is used commercially. In some countries, buildings have been registered as trademarks, though this is not common in the UK.

Do I need permission to photograph public sculptures or buildings?

Works which are permanently displayed in a public place such as buildings, statues orsculptures dont normally have copyright restrictions placed on them as far as photography isconcerned. However a photograph of any such article which is in place temporarilysuch as asculpture on show for a limited time would infringe copyright if taken without permission.


Photographers should bear in mind that there are a number of other factors which can alsoaffect whether photographs can be taken. While property owners can not prevent

photographs of their property being taken by someone standing on public land, if thephotographs are taken on private land this can only be done with the permission of theproperty owner. The owner can, of course refuse permission or put restrictions on what ispermitted. It is quite common to have photography restricted in theatres and concert hallsand this may be indicated on signs or in terms and conditions of entry to the venue possibly on tickets. Any photographer taking a photograph in breach of such restrictionswould still own copyright in the photograph but would be unable to do anything with it.

It should be borne in mind that areas such as shopping centres which are open to the publicare nevertheless often on private land and the owners have the right to restrict photography.Similarly, there are certain public places such as Trafalgar Square where professionalphotographers are not permitted to operate without a permit which must be paid for. Tourist

photographers are not restricted in the same way.


15/20


If I take photographs of people without their permission am I infringing copyright?

No. There is no copyright on people. However once again other factors need to beconsidered. Taking photographs of someone in their own home without their permission islikely to be seen as an invasion of privacy and possibly harassment. While there is no lawagainst taking a photograph of someone in a publicplace, care needs to be taken. Strictlyspeaking such a photograph can be used for commercial purposes but this is not alwaysstraightforward. A crowd scene may not be a problem but where individuals are clearly

identified this might beregarded as personal dataand therefore come underthe Data Protection Act if

used for commercialpurposes. Clearly how thephotograph is used canalso be an issue anything which couldaffect the reputation of thesubject of the photographis likely to causeproblems. Gainingpermission andwherever possible the useof a model release for any

commercial use - canreduce the risk of potentialdifficulties.



16/20

What is a model release?

A model release is a written agreement giving the photographer permission to use an imageof a particular person commercially. Any such agreement would, of course, indicate theterms of use. If you intend to sell the image to an agency for example, it may be difficult todo so without a release.

Are there particular restrictions ontaking photographs of children?

There is no specific law which restricts thephotographing of children in a public placewhere they would have no reasonableexpectation of privacy. However, as withadults it is important to be aware of otherregulations. Schools and local authorities,for example, often have their own childprotection policy rules on what is

permissible on their premises and land.Data protection once again comes into playif a child is identified in a commercially used photograph. Particularly in the case ofchildren it makes sense to gain permissionfrom a parent or guardian preferably inwriting before taking a photograph and toensure that this permission makes clear theuse to which the photograph is to be put.


What are Performance Rights?

Performers whether they be actors,musicians or others have the right to controlthe exploitation of their performances. Thecopyright in photographs or films taken of aperformance belongs to the person taking thephotograph or film but they cant exploit thework without the permission of the performer.

Do I need legal advice?

If you are in any doubt about the taking or useof photographs, particularly in a commercialcontext, it is always advisable to seek legaladvice and where possible from someonewho specialises in copyright.



17/20

Always take great care with any contracts and ensure that they make clear who will owncopyright and identify the permitted uses to which the photographs can be put.

Further information

The Association of Photographers Ltd81 Leonard StreetLondon EC2A 4QSTel 020 7739 6669Web www.the-aop.org

British Institute of Professional Photographers1 Prebendal Court,Oxford Road,Aylesbury,Buckinghamshire, HP19 8EY.Tel 01296 718530

Web www.bipp.com

Creators Rights AllianceBritish Music House26 Berners StreetLondonW1T 3LRTel 0207 436 7296

Design and Artists Copyright Society33 Great Sutton StreetLondon

EC1V 0DXTel 0207 336 8811Web www.dacs.org.uk

British Association of Picture Libraries and Agencies18 Vine HillLondonEC1R 5DZTel 0207 713 1780Web www.bapla.org.uk

UK Intellectual Property Office

Concept HouseCardiff RoadNewportSouth WalesNP10 8QQTel 08459 500 505Web www.ipo.gov.uk


18/20

Useful websites

This is not intended as a comprehensive listing. Be aware that information relating tocopyright can change over time as laws are amended and updated.

www.epuk.orgEditorial Photographers UK

www.epuk.org/abcd-of-copyrightThe ABCD of CopyrightEditorial Photographers UK

www.sirimo.co.uk/ukpr.phpPhotographers Rights in the UKLinda Macpherson

www.opsi.gov.uk/acts/acts1988/UKpga_19880048_en_1.htm

Copyright, Designs & Patents Act 1988



19/20


20/20

Business & Patent Information Services is a department of Leeds Library & InformationServices. We are members of Leeds Chamber of Commerce and also PatLib the Europe-

wide network of patent libraries.

For further information on Intellectual Property (patents, trade marks, registered designs andcopyright) please contact us as below.

Business & Patent Information ServicesCentral LibraryCalverley Street

LeedsLS1 3AB

Tel 0113 2478266Fax 0113 2478268

Email [email protected] www.businessandpatents.org

Information compiled by Ged DoonanText copyright Leeds Library & Information Services 2008

Images copyright G & C Doonan 1980-2009

With thanks to Sara Ludlam of Ludlams, IP Solicitors

Documents

Copyright In Photography