The Lister List

Photography Copyright

Copyright in photographs

This preoccupation with Copyright just will not lie down. I don't suppose it ever will, because there just isn't a straight answer to everyone asking questions about every aspect of it that will kill the subject stone dead, much as we would like one.

Now a new angle has been raised about copyright in photographs. I may be able to throw a little light on this, so I'll stick my neck out. But remember, I'm an English lawyer and a very rusty one at that so treat what I say with caution when applying what I say to United States copyright law, or for that matter the copyright law of any other country. In general, however, the copyright laws of all the countries signatory to the Berne Covention are much the same. They do vary in detail, and remember that whatever the Berne Convention may state, it is, in general, the domestic law of each country that applies within its own jurisdiction.

Copyright in photographs is the same as copyright in anything else which is a matter of human creativity. In general, as soon as a photograph is taken, it is subject to the same rules restricting copying as a piece of writing or music or anything else, (with the exception of inventions falling within the law of patents, which are governed by a separate set of rules). There are, however some peculiarities relating to photographs.

I. As with other created works,copyright prima facie belongs to the photorapher, because it is he/she woh creates it. But he may be under contract to take the photograph for someone else, and if the conract provides that the copyright in the photograph belongs to that someone else, probably the person commissioning the photogrph, then ownership of the copyright will not belong to the photographer. Photographers like to retain the copyright, so they do not normally raise the subjcec of ownership, in the hope that the person commissioning th photograph won't seek to request the copyright. Photographers also take care to rubber stamp on the backs of photographs a reservation of copyright to themselves, to make sure of the matter. Copyright is money in their hands!

2 Even if there is no contract providing that the person commissioning the photogrph shall own the copyright in it, the copyright can still be assigned to any other person. As an extreme example, a blackmailer-photographer may offer to sell the negatives and prints and also the copyright in a photograph he has managed to take of Princess Lulu in a compromising situation for a huge sum of money. Or photographic libraries may be prepared to pay large sums for particularly stunning photographs of popular subjects, so that they can sell copies themselves, but prevent anyone else from copying them andlimiting their market Like the writer of a book, a photographer may be willing to sell his copyright for a fixed sum on the basis that a bird in the hand is worth any amount of possible royalties in the bush. Anyone can assign his copyright to anyone else for money or without payment. On the death of a photographer his copyrights, if he has not parted with them, will pass under his will or according to the rules of intestacy of that country which apply to him.

3 Employers will often insert a term in the contracts of employment of their employees providing that the copyright in any materials created by the employee in the course of his or her employment will belong to the employer, whether writings or photographs or designs. This is a perfectly reasonalble thing for an employer to insist on, if the work is done o his behalf. So, the employer of a photographer will own the copyright in the photographs he takes while on his employer's business.

4. The same applies to paintings. An artist may paint many pictures and sell the actual canvasses but reserve copyright in the pictures to himself Then he may hope that if his paintings are worth reproducing, he may have an income to keep him in his old age.

5. A problem arises with photographs take of other objects in which copyright already exists.. This commonly arises with buildings. If a photographer takes a photograph of a building which is still subject to copyright (and copyright under the Berne Covention lasts for fifty years after the death of the creator, in this case, the architect), then the photographer, if he publishes the photograph of the building, may well be in breach of the architect's copyright Notwithstanding this, the photographer will himself have a copyright in the photograph as opposed to the building, but the architect's copyright may well limit the extent to which the photographer can benefit from his copyright.

I deliberately write "may well" in the last sentence. Obvously, this principle does not have to be take far before it becomes utterly absurd. Is an architect to have control over every photograph that casually includes his building in the background? If the law went as far as that no-one would ever be able to take a photoraph in public without fearing that he would become the recipient of a writ claiming damages for breach of copyright. The taking of photographs would soon be frozen out of existence. So the law provides that photographs of buildins taken only incidentally in the background of photographs will be exempt. It is a question of degree: is the main subject of the photograph the church, in which its architect takes great pride, or is it John and Mary standing at the door of the building where they have just been married?

5. It has been suggested that individuals may have a copyright in their own faces. Is this so? Copyright in facial features is not provided for in the Berne Convention, but that does not mean that individual countries or legal jurisdictions cannot make their own laws on the subject. It is, therefore a matter for the domestic law of each legal jurisdiction. There is no such provision in English law and in this country, nobody can prevent a photographer from taking his or her photograph and publishing it on the front page of the Daily Shocker as was demonstrated two or three years ago. But other countries may have enacted laws to prevent this; I have no information on what they may have done. It is an area where the need to protect individual privacy is in conflict with the need to preserve the freedom of the press and liberty of expression. Apart from the enormous difficulty of drawing up effective legislation in this field, governments in free contries are very reluctant to place limitations of any kind on free speech.

I think that's enough on a subject that bristles with difficulties. We can console ourselves that provided we go about our paperfolding and photography with common sense and do not deliberately tread on the toes of other people, the law of copyright will remain a matter for theoretical speculation. Just look where you go!


David Lister.

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