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Copyright In Photography

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C o p y r  i  r g  i  ht i n P hot o g r a ph

This booklet is a brief guide to UK copyright specifically relating to photography. It attempts to reflect the current situation in what can be a complex and changing subject area and should not be considered as legal advice. What is copyright? Copyright is an automatic legal right which protects original literary, dramatic, musical and artistic works. This includes among other things, sound recordings, broadcasts, photography, film and computer programs. It does not protect inventions or the names you give to your product or service. It also does not protect an idea, but rather the tangible expression of the idea in some physical form – a photograph is one example of that expression in physical form. Why is copyright important? Copyright enables those who have created a work, such as a photograph or an image, to be paid for their creativity and to be acknowledged as the creator (see section on Moral Rights). Others can only use copyrighted work with the permission of the copyright owner. The owner will often charge for this permission. Copyright owners can also Copyright © G Doonan 2009 control 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 and action 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 related exists - providing it is recorded or “fixed” in some way (this may for example be in the form of a photograph, a film, video or DVD recording). For example as soon as you take a photograph 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 work or composition and those who want to use it or enjoy it. Other laws can affect what can be done 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 the person who created the copyright work. In the case of films, it lasts for 70 years after the death of the principal director, the writers of the screenplay, the writers of the dialogue or the composer of the film’s music (whichever of these happened last). In each case this term is

calculated from the end of the calendar year. Copyright on sound recordings and broadcasts lasts 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 quite complex as over the years different rules have applied at different times and often it is determined by the law in force at the time that the work was created. The term for photographs 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 with the copyright holder’s right to make money out of their work. Copyright also gives the creator specific moral rights which in most (but not all) cases last as long as the copyright in the work. 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 creator  of the work and to prevent 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 other moral rights this is not an automatic right. The creator of the work must state in writing that they wish to assert this right. Very often the phrases “All rights reserved” or “The author wished to assert his / her moral rights” will indicate that this has been done. Attribution right - the right to object to false attribution – to prevent anyone else claiming authorship of the work. Unlike the other moral rights, this right lasts for 20 years after the death of the person who creates the work. Integrity right – the right to object to derogatory treatment. Any use of the work which distorts it or could damage the copyright owner’s reputation infringes their Integrity right. This can include any digital or manual manipulation or alteration of images including cropping. If for example someone were to alter an original photograph to make it offensive, or an image was used to advertise a Copyright © G Doonan 1980 product 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 the public if it was initially commissioned for private or domestic purposes – for example wedding photographs or family portraits. •





Moral rights can not be licensed or assigned. The original creator of a work will retain the moral rights even if copyright is assigned (ie sold or transferred) to someone else. So in this situation 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 author’s 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 don’t apply? Moral rights don’t apply to photographs taken for the purpose of reporting current events or photographs published in newspapers, magazines, periodicals, and collective works such as dictionaries or yearbooks although these publications may still be willing to give a credit to

Copyri g ht © C Doonan 2008

the photographer. Moral rights don’t apply to photographs taken by employees for whom taking photographs is a normal part of their duties. They also do not apply to wholly computer-generated works. Can moral rights be waived? Sometimes clients may request a photographer to waive – ie give up – moral rights in a photograph. Moral rights can be waived if done so in writing and signed by the original rights holder. If moral rights are waived, the photographer loses all control over how the work is used so these rights should not be given up lightly. Obviously there is a potential danger of subsequent 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 identified as the creator of the work. What is Revived copyright? In 1996 following an amendment to the 1988 Copyright Designs and Patent Act copyright terms changed. Up to this point copyright in the UK had generally lasted 50 years after the st end of the year in which the author of the work died. After 1  January 1996 this was extended to 70 years which meant that some works in which copyright had expired were back in copyright or “revived”. The copyright owner in this situation can not refuse a licence to someone wishing to use the revived work providing the copyright owner is given reasonable notice and paid a reasonable royalty. How is copyright infringed? Copyright comprises a collection of rights – basically copying, issuing to the public (including

adapting the work. Copyright is infringed if any of these acts are carried out without the copyright owner’s permission. When this happens, the copyright owner can take legal action against the person or organisation who is infringing. Such infringement requires that a “substantial” 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 what  it’s going to be used for. If it’s ambiguous and it’s used for something not explicitly agreed, this could be infringement. Where multiple copyrights exist, each one needs to be cleared before it can be used. What exactly does substantial mean? It is important to understand that “substantial” does not necessarily mean “large”. A very small part of the work which is distinctive or significant would be regarded as being substantial by a court. In 2001 Panini, a company which produces sticker albums of photographs of Premier League footballers, was taken to court by the Premier League. Panini produced the stickers without the permission of the Premier League and the Premier League claimed that as the photographs showed Premier League and individual club badges on the players shirts Panini was infringing copyright in those badges. Panini claimed that these badges were a small and incidental part of the pictures but the court found that though they may be a small part of the whole picture they were a fundamental part of what the players look like and therefore substantial. Is it a criminal offence to infringe copyright? Deliberate infringement on a commercial basis is 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 and / or a prison sentence.

Copyright © G Doonan 2007 

Is there a register of copyright? No. Because it is an automatic right which is free, there is no register of copyright or application system in the UK. It is therefore important to be able to prove as far as you can when the work first existed. A relatively simple way to do this is to place it in a sealed package, 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 once again, obtain a dated receipt. If a copyright case came to court, the package would be opened by the judge.

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 do require the work to be marked. However if you do not put a copyright notice on your work it may result in you not being able to claim damages for any subsequent infringement so it is good practice to use the © followed by your name and year of creation to indicate clearly that you intend to assert your rights - to warn others off and maximise the legal protection available to you. It is a good habit to get into at an early stage, particularly when you are dealing with anyone who is not connected with the creation of the work. Some take the view that it’s good practice to include the phrase “All rights reserved” to indicate 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 be reproduced. Providing your contact details can enable someone who is seeking permission to use the work to do so. How much additional information is given may, of course, be determined by how much space is available, but some indication of ownership may avoid the problem 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 digital images are concerned more options are likely to be available. Various software packages enable you to place a copyright notice across the centre of an image while digital watermarking embeds a marking within the image itself.

Business & Patent Information Services is a department of Leeds Library & Information Services. We are members of Leeds Chamber of Commerce and also PatLib – the Europewide network of patent libraries. For further information on Intellectual Property (patents, trade marks, registered designs and copyright) please contact us as below. Business & Patent Information Services Central Library Calverley Street Leeds LS1 3AB Tel 0113 2478266 Fax 0113 2478268 Email [email protected] Web www.businessandpatents.org

Information compiled by Ged Doonan Text copyright © Leeds Library & Information Services 2008 Images copyright © G & C Doonan 1980-2009 With thanks to Sara Ludlam of Ludlams, IP Solicitors

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