Photographers and Copyright

Lionel Bently

Overview

• When are photographs protected by copyright?

• Who Owns copyright?• What Rights Does Copyright Confer?

(Economic Rights, Moral Rights)• When Is Permission Unnecessary?• How is Copyright Enforced?• What are Orphan Works? Why are

Photographers Worried about OW legislation?

Photographs as Works• Copyright subsists in original literary, dramatic,

musical and artistic works (etc).• “artistic work” means—a graphic work,

photograph, sculpture or collage, irrespective of artistic quality....

• “photograph” means a recording of light or other radiation on any medium on which an image is produced or from which an image may by any means be produced, and which is not part of a film.

When Does Copyright Subsist In Photographs?

• Term Directive, Article 6:• ‘Photographs which are original in the sense

that they are the author’s own intellectual creation shall be protected in accordance with Article 1. No other criteria shall be applied to determine their eligibility for protection. Member States may provide for the protection of other photographs.’

Case C-145/10 Eva Maria Painer v Standard VerlagsGmbH

• EP photographer eg in nurdery• NK abducted 1998.• When escaped in 2006,

photograph was published without permission/attribution and a photo-fit was made to show her as she might look in 2006

• Was the photo protected by copyright?

Case C-145/10: Is a Portrait Photograph Original?

[91] In the preparation phase, the photographer can choose the background, the subject’s pose and the lighting. When taking a portrait photograph, he can choose the framing, the angle of view and the atmosphere created. Finally, when selecting the snapshot, the photographer may choose from a variety of developing techniques the one he wishes to adopt or, where appropriate, use computer software.

[92] By making those various choices, the author of a portrait photograph can stamp the work created with his ‘personal touch’.

[93] Consequently, as regards a portrait photograph, the freedom available to the author to exercise his creative abilities will not necessarily be minor or even non-existent.

[94] In view of the foregoing, a portrait photograph can, ...be protected by copyright if, which it is for the national court to determine in each case, such photograph is an intellectual creation of the author reflecting his personality and expressing his free and creative choices in the production of that photograph.

What about other non-original photographs?

• Member States could protect• The UK probably used to do so: ‘originality’ had

a different meaning – the investment of labour skill and judgment. The High Court held a photograph of three dimensional objects to be ‘original’ in that sense: Antiques Portfolio v Rodney Fitch

• It is unclear, but probably the UK no longer does so.

Who Owns Copyright?

• Copyright Designs and Patents Act 1988, s 9: ‘the author’

• The author= the creator. In the case of the photographer the person who contributes what is ‘original’ – chooses the background, pose, angle, lighting etc

• One statutory exception: CDPA, s 11. Photographs created (a) by employees (b) in the course of employment.

What About Commissioned Photographs?

• In theory, copyright belongs to photographer unless there is a written assignment.

• But the Courts sometimes infer an intention to transfer copyright if the commission is for value and the commissioner needs the exclusivity to achieve its business aims.

How Is An Assignment of Copyright Made?

• In other cases, CDPA requires “writing signed by or on behalf of the assignor.”

• Not achieved by merely selling the work.• But it can be sufficient if this is an invoice or

receipt (Savoury v World of Golf [1914])• And can be for “future copyright”• No clear basis for preventing photographers

from assigning all rights

What Are “Creative Commons” Licences?• There are different versions:• CC BY-NC-ND Attribution Non-commercial No

Derivatives. (The most popular licence.)• CC-BY-ND Attribution-No Derivatives• CC BY-NC-SA Attribution Non-commercial Share-

Alike• CC-BY-NC Attribution Non-commercial• CC-BY-SA – Attribution Share-Alike (Wikipedia)• CC-BY Attribution

What Rights Does Copyright Confer?

• ‘Economic rights’ –- To reproduce;- To distribute;- To communicate to the public (Broadcast, make

available (on the Internet) etc)• Directly or Indirectly• ‘Any original Part’

Temple Island Collection v New English Teas [2012] EWPCC 1

Defendant’s took 3 photos of Parliament and one of a bus on the Strand. Blended.

Claimant’s work (created by Fielder in 2005) and used on mugs, stationery, key fobs

Temple Island Collection v New English Teas [2012] EWPCC 1

“I have decided that the defendants' work does reproduce a substantial part of the claimant's artistic work. In the end the issue turns on a qualitative assessment of the reproduced elements. The elements which have been reproduced are a substantial part of the claimant's work because, despite the absence of some important compositional elements, they still include the key combination of what I have called the visual contrast features with the basic composition of the scene itself. It is that combination which makes Mr Fielder's image visually interesting. It is not just another photograph of clichéd London icons.”

Temple Island Collection v New English Teas [2012] EWPCC 1, para 62

“ I sympathise with Mr Houghton in his wish to use an image of London landmarks. He is free to do so. There are entirely independent images of the same landmarks available to be used which predate publication of Mr Fielder's picture. .... Mr Houghton could have simply instructed an independent photographer to go to Westminster and take a picture which includes at least a London bus, Big Ben and the Houses of Parliament. Whatever image was produced could then have been used on the tins of tea. Such an image would not infringe. It may or may not have the same appealing qualities as the claimant's image. Even if it did they would be the result of independent skill and labour employed by the independent photographer. Again however that is not what happened.”

What Acts Are Permitted Even Without Consent?

• Fair Dealing for Criticism or Review of a work. The photograph must have been made available.

• Authorship must be acknowledged.• It can be fair to use the whole of a photograph

eg for a short time in a film or broadcast: Fraser-Woodward v BBC [2005]

• Fair Dealing for Reporting Current Events – Does not apply in relation to photographs

What Acts Are Permitted Even Without Consent?

• Photographers rely on exceptions:• (i) incidental inclusion: s 31 (“Copyright in a work

is not infringed by its incidental inclusion in an artistic work...”)

• (ii) designed articles that are more than 25 years old (s 52, but about to be repealed)

• (iii) artistic works ‘permanently situated in a public place or in premises open to the public’

• ECtHR (5th section), 10 January 2013, Ashby Donald and others v. France, App. 36769/08

Moral Rights

• Photographers gain two ‘moral rights’ – which are non-assignable.

• Right of attribution – but must be asserted• Right of integrity. Infringed by modifications

which are ‘prejudicial to the honour or reputation of the author.’

How is Copyright Enforced?

• Through courts. Expensive. And risky. “Loser pays” winners costs.

• Though 2010 introduced “costs caps” at the Patents County Court – so maximum would be £50,000 (and structured so that would be lower in most copyright cases).

• Note: Oct 2012. Small claims (under £5000) track on Patents County Court.

• Note also ‘notice and take down’ (eg Flickr); criminal liability

What Are Orphan Works And why are Photographers Worried about OW

Legislation?• Orphan Works are works where the copyright

owner cannot be identified or located.• On the whole, Directive 2012/28/EU does not

apply to photographs unless “embedded” in works published in the form of books, journals, newspapers, magazines or other writings

• But clause 69 Enterprise and Regulatory reform Bill would introduce a more open-ended power (s 116A) and could cover photographs