Posted in Professional Practice

Copyright

Copyright is the right to authorise or restrict the making of copies. It is an author’s right, a property right, a human right and a collection of rights. Copyright doesn’t always sit well with everyone. Through copyright a photographer can protect their work against unauthorised copying and permit or restrict the use of their photographs. They can also get payment for the use of work. There is no system for registering copyright in the UK. Copyright exists automatically from the moment the photograph is created, but only in material form.

Copyrights can be used on a photograph, a sculpture, painting, design, illustration, music, signatures, architecture, film, cartoons, typeface, performance, literature, names, logos, products and more. As demonstrated you can copyright almost anything.

Copyright is protected in the UK under the Copyright Design & Patents Act 1988. This law came into effect on 1st August 1989. The 1956 or 1911 Act will still apply to some older works. Since the 1988 Act, it has been changed a number of times. The most important amendment that has taken place, has affected the duration of copyright for photographers.

The creator of protected work is it’s ‘author’. In photography the author is the person who creates it, the photographer. Photographers have not always owned copyright & these old rules still cause a great deal of confusion. Under 1911 & 1956 Copyright Acts, The commissioner (company or person) owned copyright. ‘The author’ was the person who owned the film. Thankfully this is no longer the case. However some clients still think this old rule applies. Employed photographers don’t hold the copyright of any work produced in the course of their employment. The copyright is owned by the employer. Using equipment that belongs to your employers outside office hours, could still give the employer the copyright. Copyright in a photograph lasts for the life of the photographer plus 70 years.

The ownership of artists work is quite separate to the ownership of materials. If a photographer sells a photograph for a sum of money, the buyer does not own the copyright, with the right to hang the work. The copyright remains with the photographer

Clients need to be aware of the cost difference of a one-off advert compared to the assignment of copyright. The photographer needs to clarify costs before the job commences. You can include key wording, file info, copyright and license, contact details in your metadata.

Copyright Infringement is classified in two different categories. Primary which is when reproducing/ copying takes place without the photographer’s permission, a photograph is used without permission and put onto a t-shirt, or another unlicensed photograph is made into an ‘art’ poster. The other sector is secondary which includes other aspects of trade in the pirated or infringing goods and where the infringing t-shirt and ‘art’ posters are sold from a market stall, even if the market trade did not make them their self. These infringements can be made by commissioners and clients who use the photographs but don’t pay or comply with contractual terms, commissioners and clients who use the photographs outside the terms of the original license or other users who copy photographs without clearing rights.

Duration of Moral Rights Applies to any photographer who was alive on or after the 1st August 1989; irrespective of whether the work was created before or after that date. The Attribution Right is the right to be identified as the author and the right to have name appear alongside photograph. The Integrity Right is the photographer’s right to prevent work being mistreated. Attribution & Integrity Right is for the purpose of reporting current events, publication in a newspaper, magazine or similar. The False Attribution Right belongs to anyone who wrongly has work attributed to them. It can be deliberate where an advertiser want to use a more prestigious photographer, to create value. The Privacy Right applies only to commissions for ‘private and domestic purposes’. That person has the right not to have copies of the work issued to the public, exhibited or shown in public. Most photographers’ are freelance. They are the first owners of copyright. They will have a contract with the client to determine copyright issues

Roger vs. Koons is just one famous example of a copyright infringement. A situation arose when Jeff Koons made a sculpture that was almost identical to the photograph “Puppies” taken by Roger. The photograph was taken for a postcard and clearly showed his copyright of the image. Roger approached Koons about the matter but he denied the case saying that the placement of daisies and dramatic colours meant that it wasn’t a copy. However, Rogers spoke to the sculptures of Koons’ piece who said that Koons had told them to replicate the image “even down to the angle of the collar”. So Rogers took Koons to court where Koons said that his work was only a parody and therefore not an infringement of the photograph. The judge dismissed this as an eligible argument and Koons eventually admitted that he ignored the copyright on the image. As a result, he was made to hand over the remaining un-sold sculptures to Roger and £375,000 compensation. This proves how costly and damaging this is to a business, especially if you are a freelancer.

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