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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 Copyright © G Doonan 2009 permission. Copyright owners can also 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 Copyright © G Doonan 1980 offensive, or an image was used to advertise a 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
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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 end of the year in which the author of the work died. After 1st 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 renting), performing, broadcasting, storing by electronic means, posting on the internet or
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. 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.
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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.
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 your work to their own register for a charge, in order to help you establish when the work first existed. As such registration is not required by law you would obviously need to balance the advantages in doing so against the costs involved.
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Can copyright change hands? Copyright is a property right – it is a form of “intellectual property” – and like any other property, copyright can be transferred, bought, sold, inherited or used as collateral. This is described 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 common for 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 in return 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 the terms of the agreement - such as how long it lasts, whether it’s exclusive, the number of times 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 owner assigns 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 part of the rights. It is possible to assign works which will be created in the future so that an
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individual agreement does not have to be set up each time. This is known as “future assignment”. 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 original copyright owner would be signing away future rights. Licences and assignments should be made in writing and signed by the owner. It would be advisable to include an assertion of moral rights (which can be waived but not assigned). The copyright holder has the right to decide how the work is used and can refuse to allow use for specific purposes. The broader the licence, the more a client should have to pay and similarly an assignment is likely to be more expensive than a licence. It is important to read any contract carefully and be clear about any licensing and assignment terms which are included. Similarly when placing photographs on any web sites terms and conditions of those sites should be checked carefully. If the photographer states their own terms before accepting 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 copyright owner’s name. Anyone copying, using or downloading copyright material from a website infringes copyright. It is worth bearing in mind that it can be difficult to enforce copyright on material you have made freely available on a website particularly as the site can be accessed from anywhere in the world. Using watermarking as previously mentioned may be useful as it may enable you to scan the internet to see where an image may be being used without permission.
What is a Takedown Notice? If the copyright owner finds an infringing copy of their work on the internet, the first step is normally 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 the ISP provider requesting removal of the work. Does copyright protect my works abroad? Most major countries are members of international copyright conventions recognising copyright which has originated in any member country. However there are a few countries which do not do so. Some countries, such as the US, advise registration there even though it is not legally required. If you do not follow this advice you would not be able to recover damages for any infringement. Who owns copyright in a photograph? Initially, copyright belongs to the person who creates the work. In the case of photography it is normally the person who takes the photograph (unless there’s a written contract saying otherwise and signed by the photographer). What if the photographer is being paid by someone else to take the photographs?
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In most situations this will not affect ownership of the copyright – it is the person creating the work and not the person paying for the work who owns copyright. The 1988 Act brought this in, so for photographs taken before 1st August 1989 copyright belonged to the person commissioning 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 in this employment, then the copyright will belong to the employer (unless there’s a contract stating otherwise). If the photographs were not taken in the normal course of their duties, or the photographs were taken on a freelance basis, the photographer retains the copyright. It is important that all contracts are studied carefully and appropriate legal advice taken where necessary. What if more than one person is creating the work? Copyright initially belongs to the original creator – for example the person who takes a
photograph. However, this might not always be clear. Creating a photograph can involve decisions on composition, lighting and exposure among other things. If two people contributed to this and their contributions are not distinct it is assumed that ownership is equally 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 photographer for a DVD of photographs does the client then own the copyright? No. In the same way that owning a music CD does not give you the right to copy the music on it, a DVD of photographs does not give you copyright in the photographs on the DVD. If a client wants to sell or make their own copies of photographs they have received from a photographer do they need permission? Yes. Copyright belongs to the photographer. This will only change if there are terms in the contract to allow this.
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If a photographer is commissioned to take photographs of a wedding is he free to use the photographs however he likes? The Copyright Designs and Patent Act 1988 gives the client the right not to have photographs taken for private or domestic purposes issued to the public, exhibited or broadcast without their permission. Therefore, although the photographer owns the copyright in this situation, the client can control how they are used. It obviously makes sense for photographer and client to agree from the outset how the images are to be used to avoid difficulties later on. If a photograph is taken of an existing work such as a painting, who owns the copyright in that photograph? Copyright will normally belong to the photographer. This copyright
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is totally separate from that of the painting. However, if the painting is still in copyright and the photograph is taken without permission the photograph will infringe the copyright in the painting. This means that although the photographer owns the copyright in his photograph he can not use it. In 1999 the Bridgeman Art Library took legal action against the Corel Corporation for copyright infringement. Corel had used some of Bridgeman’s photographs of paintings without permission. In a controversial decision the judge in a New York District Court ruled that a “slavish recreation” of a work (such as a photograph) is not original and therefore not covered by copyright. Such a case has not been tested in a UK court and some have expressed the view that under UK law a different opinion would be reached as the photograph would be seen as a separate and original work. It is worth bearing in mind that areas such as this may not be clear. If the photograph is retouched or digitally altered can this avoid infringement? No. Doing so without permission of the original copyright owner will not avoid infringement. What if the photograph is altered significantly?
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Any retouching of some one else’s picture or photograph without permission infringes copyright. If retouching is carried out with the permission of the original copyright owner and as a result the picture is changed significantly from the original this could create a second – and separate - copyright in the retouched work. This would not affect the copyright ownership of the original work. In order 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 else’s work? Copyright works can only be used by others without the owner’s permission in certain specific, 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 it has 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 words using 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 infringe copyright – such as a photograph of a painting in a sale catalogue.
What are orphan works? It can be difficult to determine who the copyright owner of a particular picture is. If the work is still in copyright and the author is unknown, it is called an “orphan work”. This situation may sometimes result from the newspaper, magazine or publication where the photo is displayed not crediting the author of the picture. Format shifting, where a work is copied from one format to another may also be a cause. Changes in copyright law resulting in revived copyright sometimes create orphan works. A lack of information provided by the copyright owner can also result in an orphan work. It may be possible to reproduce an orphan work providing the person wishing to make the copy can provide enough evidence of a reasonably “diligent” search to find the original rights owner. Unfortunately “diligent” has not been defined – a situation which can leave both the copyright 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 in any way (including electronically) or makes it available to the public will own Publication Right. This right works in the same way as copyright but lasts 25 years from the end of the year of publication. If the publisher is different from the current owner of the actual physical work 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 photograph which has not been made available to the public and they allow someone else – such as a gallery – to display it then the gallery, and not the owner of the photograph will have publication 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 company from that of another, and often comprises words or a logo. For example many supermarkets and other high street businesses have trade marked their names and often logos or slogans to go with them. A photograph of a trade mark could infringe the rights of the trade mark owner if it is the main focus of the picture, particularly if it gives the impression that it was produced by the owner or the purpose is to use the mark to gain commercial advantage. If a trade mark is included incidentally in a photograph such as a street scene it is unlikely to cause problems. Is there copyright on buildings? There would be copyright in the architectural drawings. The Copyright Designs & Patent Act states that generally copyright in such a work is not infringed by making a photograph or film of it. However, as described below, there are other issues particularly if the
image is used commercially. In some countries, buildings have been registered as trade marks, 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 or sculptures don’t normally have copyright restrictions placed on them as far as photography is concerned. However a photograph of any such article which is in place temporarily such as a sculpture on show for a limited time would infringe copyright if taken without permission.
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Photographers should bear in mind that there are a number of other factors which can also affect whether photographs can be taken. While property owners can not prevent photographs of their property being taken by someone standing on public land, if the photographs are taken on private land this can only be done with the permission of the property owner. The owner can, of course refuse permission or put restrictions on what is permitted. It is quite common to have photography restricted in theatres and concert halls and 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 restrictions would 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 public are 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 professional photographers are not permitted to operate without a permit which must be paid for. Tourist photographers are not restricted in the same way.
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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 be considered. Taking photographs of someone in their own home without their permission is likely to be seen as an invasion of privacy and possibly harassment. While there is no law against taking a photograph of someone in a public place, care needs to be taken. Strictly speaking such a photograph can be used for commercial purposes but this is not always straightforward. A crowd scene may not be a problem but where individuals are clearly identified this might be regarded as personal data and therefore come under the Data Protection Act if used for commercial purposes. Clearly how the photograph is used can also be an issue – anything which could affect the reputation of the subject of the photograph is likely to cause problems. Gaining permission – and wherever possible the use of a model release for any commercial use - can reduce the risk of potential difficulties.
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What are Performance Rights? Performers – whether they be actors, musicians or others – have the right to control the exploitation of their performances. The copyright in photographs or films taken of a performance belongs to the person taking the photograph or film but they can’t exploit the work without the permission of the performer. Do I need legal advice? If you are in any doubt about the taking or use of photographs, particularly in a commercial context, it is always advisable to seek legal advice – and where possible from someone who specialises in copyright.
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Always take great care with any contracts and ensure that they make clear who will own copyright and identify the permitted uses to which the photographs can be put. Further information The Association of Photographers Ltd 81 Leonard Street London EC2A 4QS Tel 020 7739 6669 Web www.the-aop.org British Institute of Professional Photographers 1 Prebendal Court, Oxford Road, Aylesbury, Buckinghamshire, HP19 8EY. Tel 01296 718530 Web www.bipp.com Creators Rights Alliance British Music House 26 Berners Street London W1T 3LR Tel 0207 436 7296 Design and Artists Copyright Society 33 Great Sutton Street London EC1V 0DX Tel 0207 336 8811 Web www.dacs.org.uk British Association of Picture Libraries and Agencies 18 Vine Hill London EC1R 5DZ Tel 0207 713 1780 Web www.bapla.org.uk UK Intellectual Property Office Concept House Cardiff Road Newport South Wales NP10 8QQ Tel 08459 500 505 Web www.ipo.gov.uk
Useful websites This is not intended as a comprehensive listing. Be aware that information relating to copyright can change over time as laws are amended and updated. www.epuk.org Editorial Photographers UK www.epuk.org/abcd-of-copyright The ABCD of Copyright Editorial Photographers UK www.sirimo.co.uk/ukpr.php Photographers Rights in the UK Linda Macpherson www.opsi.gov.uk/acts/acts1988/UKpga_19880048_en_1.htm Copyright, Designs & Patents Act 1988
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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@example.com 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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