Copyright is protected in the UK under the Copyright Design & Patents Act 1988 (as amended). 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’.
Photographs are protected for 70 years after the death of the photographer. However if they are subject to Crown copyright then it applies for a maximum of 125 years; if subject to Parliamentary copyright it applies for 50 years from the taking of the photograph. Copyright in a photograph lasts for the life of the photographer plus 70 years. The law protects photographs as artistic works, so what is meant by a photograph?
The definition in the 1988 Act reads as follows:
“‘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’.”
Authorship & Ownership
The creator of protected work is it’s ‘author’. This term applies to creator of any protected work and has a legal meaning of it’s own. In photography the author is the person who creates it, the photographer, not the assistant (who might load the film/compact flash card, or even press the button), the art director (who came up with the concept), the stylist but 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.
Who owns the copyright on photographs?
Under law, it is the photographer who will own copyright on any photos he/she has taken, with the following exceptions:
If the photographer is an employee of the company the photos are taken for, or is an employee of a company instructed to take the photos, the photographer will be acting on behalf of his/her employer, and the company the photographer works for will own the copyright, and if there is an agreement that assigns copyright to another party.
In all other cases, the photographer will retain the copyright, if the photographer has been paid for his work, the payment will be for the photographer’s time and typically an allocated number of prints. The copyright to the photos will remain with the photographer, and therefore any reproduction without permission would be an infringement of copyright.
• If Bill Smith asks Peter Jones the photographer to photograph his wedding. Peter Jones will normally provide a single copy of the prints as part of the fee, but any additional prints Bill or his family and friend want must be ordered via Peter as he is the copyright owner and controls who can copy his work.
• If Bill Smith engages the services of XYZ-Photos for the same job, and Peter is an employee of XYZ-Photo who instruct Peter to take the photos, XYZ-Photos will be the copyright owner and control how they are used.
The purpose of registration is to ensure that you have proper, independently verifiable, evidence of the date and content your work. This ensures that if another party steals your photos you have solid evidence to prove your claim, without registration it can be very difficult, and often impossible, to prove your ownership if another person claims the photo belong to them. Copyright protects whole collections for a single fee and it is possible to submit many photos within a single registration, and only pay a single registration fee.
As with all copyright work, you should first obtain permission from the copyright owner before you use someone else’s work. You should also be prepared to pay a fee, as many photographers will charge you for using their work. Only the copyright owner, (or his/her authorised representative), can give permission, so you should contact the photographer, or his/her company, directly for consent. For images published on the Internet, it is typical to contact the webmaster of the site in the first instance, unless the site provides contact details for the owner of the images. The copyright owner has no obligation to allow you to use their work, and can refuse permission for any reason.
Marking your work
The two primary reasons for marking your work are to ensure that those accessing your images are clear that copyright exists and that they know who to contact to obtain permission.
People often receive enquiries from individuals and organisations wishing to use specific photos, but who are unable to trace the owner. It seems that many images are marked as ‘copyright image do not reproduce without permission’, but that the photographer omitted to include their contact details. This is frustrating to the person wishing to use the image and also means that the photographer may miss out on reproduction fees and exposure.
People do recommended that you mark your work with a copyright notice, as this makes it clear that copyright exists, and helps to deter infringement. Please see our fact sheet P-03: Using copyright notices for information on wording you notices. For traditional prints, it is customary to use a stamp to mark the copyright notice and the copyright owners contact details on the back of the print. If you display your photos online, you may choose to use photo editing software to place a simple copyright notice across the image, (typically this will appear in the bottom corner). Ideally it should include the address of the web site so that it is clear where to go to find contact details. For electronic images, it is also possible to include the copyright/contact details in the file properties. Under Windows for example, right clicking on a image will allow you to bring up the properties dialogue where you may enter details about the file, (though this will only work with certain file types). More typically, your image software will provide a way to insert comments into the file; this is preferred as these are harder to remove. Watermarking may be worth considering if you have a lot of valuable images on your site.
Model release forms
An individual has certain rights to control the use of their image. The specific details will vary from one country to another depending on national legislation, although the general rule seems to be to protect a person against defamatory or offensive use of their image. If you intend to sell or distribute images that include people, then it is worth getting your subjects to sign a model release form as this will protect you against any comeback. Model release form for children under 18 need parents/guardians to sign.
Do not hold the copyright of any work produced in the course of their employment. The copyright is owned by the employer. An employee in the UK: is someone who works under a contract of employment, whose tax & National Insurance are deducted before receipt of payment. Be careful when working as an employed photographer, as using equipment and/or darkrooms of your employers outside office hours, the copyright could still lay with the employer.
Dealing with Copyright, transferring ownership
A person occupies the whole of their house, they rent or lease the whole of their house, that person rents out a room or a flat and the owner can sell the freehold to their house.
The photographer holds copyright and noone else is granted the right to use the photograph, the photographer licenses someone to reproduce their work in any media, in any territory or for any period of time. The photographer grants a publisher the right to publish in a single edition of a consumer magazine within the EU, or the photographer licenses an advertising agency to run a 48 sheet poster campaign on 90 sites in the UK and Australia over a two year period. The photographer assigns the copyright in their work.
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 tohang the work. The copyright remains with the photographer.
Commissioners and clients who use the photographs but don’t pay or comply with contractual terms, also commissioners and clients who use the photographs outside the terms of the original license. Other users who copy photographs without clearing rights:
i. either by making an exact copy of original
ii. or by getting another photographer to re-take the photograph or imitate it too closely.
Reproducing/copying takes place without the photographer’s permission, and when a photograph is used without permission and put onto a t-shirt, or another unlicensed photograph is made into an ‘art’ poster.
Other aspects of trade in the pirated or infringing goods, 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.