Copyright law is complex, and with regard to photographs it can be especially complex. It continually evolves through legislative directives of national governments, the European Union, changes to the Berne Convention for the protection of Literary and Artistic Works, and by the Universal Declaration of Human Rights.
This article can only provide an outline of copyright as law as it applies to photographs, and none of the statements herein should be taken as definitive legal advice. What is offered is based primarily on UK legislation, but certain differences with US legislation are noted. We do have a section entitled, “Copyright Law around the World“, where you will find links to authoritative websites that deal with copyright specifics in various countries.
Although we offer this introduction to copyright law, we do not present ourselves as authorities of the law. As noted earlier, copyright is complex and constantly interpreted and re-interpreted. You are therefore advised to obtain specific legal advice from a lawyer specialising in intellectual property cases.
Copyright – The Right to Economic Benefit
Copyright law gives photographers exclusive rights with regard to the work they create so as to protect these creative works against unauthorised reproduction, and to entitle the photographer to the economic benefits of licensing their work for specific uses. Absent such rights, it would be difficult if not impossible for anyone to survive as a working photographer.
Among the following are exclusive rights you have with regard to photographs you create:
- The right to determine where and how the work is used
- The right to distribute the work under your specific terms
- The right to specify in what media the published work will exist
- The right to license any adaption of your work
You have the exclusive right to grant or prohibit these privileges under any terms you wish to negotiate. Infringement occurs when these rights are abridged by another party.
You do not need to register a photograph for it to protected by copyright. Copyright is granted at the moment of creation. In the UK you need not register your work – there is no public authority with which to register photographs. That differs from the United States where, although it is not essential to register a photograph, it is of great advantage to do so, particularly should your case go to court.
Note that you can waive your rights in any way you wish. You can even transfer them to someone else. And it follows that you can easily lose them by not reading carefully the terms and conditions of any contracts you may be required to sign or accept by clicking on that “Agree” button.
Protecting your rights is exclusively YOUR responsibility. Never give them away.
Read all terms and conditions carefully for any agreements you are being asked to accept. Check specifically what the agreement says about copyright and what it allows the other party to do with your images. If you don’t understand the agreement, don’t accept it.
Copyright – How not to lose it
As mentioned earlier, as soon as you create an image, you are the ‘first owner’ of copyright and this gives you a complete set of exclusive rights, foremost of which is one of the most of important aspects of your livelihood, is that you, and you alone, have the exclusive right to license the image for use, and to set the precise terms and conditions of such usage. No one else has these rights, only you. This is what the law freely gives you as the creator of the image.
Because you have used your intellect, skill, experience, and your own unique sense of artistry to create a superb image, it is only right and proper that the law should guard you from those who, not having a fraction of your creativity, experience, or skill, would prefer to freely use your work at no cost to themselves. Many, many organisations wish to acquire your rights because it is a very profitable thing to own.
There are some, from the innocent to the thieves and cheats of this world, who will just take your images and use them without your leave. They take the chance you will never find out, and maybe you never will. However, in the world of business more subtle methods are used to separate you from your copyright.
Big Business, generally speaking, does not want to be seen operating outside of the law, so they devise subtle tactics to relieve you copyright from you. If you are naive and unwary your copyright can be gone and you are none the wiser until it’s too late.
However, you, as the copyright owner, also have the right to assign your copyright to another person or body, either for the full legal duration of the copyright, or for just a portion of it, say 2 years. This gives the other person or body the same exclusive rights that you, as the first owner, had, but have now lost because you have assigned them to someone else.
It is hard to imagine many circumstances when you would willingly assign copyright to another unless it was for a very large sum of money, or on your death as bequeathed to someone else so that they can benefit from the copyright.
It would be a foolish thing to do, but the law permits you to do this foolish thing, both in the U.K. and the U.S., perhaps other countries too, providing you sign a written agreement saying that you wish to be foolish and give your copyright to someone else. The agreement, however, must be written, and must be signed.
Claims on a purchase order, or any bit of paper for that matter, that are not signed by the assignor are invalid and unenforceable in law. Also claims on a website that by entering or submitting this or that you are agreeing to give your copyright away are also invalid.
Now that you know this, you won’t be foolish, will you?
Now note this: you can bequeath your copyright to another person or body, such that on your death, they will own the copyright and continue to benefit from licensing the images for 70 years after your death. This is an important asset for your family and the continuance of your business, and this is the one circumstance in which it is very wise to assign, or to be correct in this case, bequeath, your copyright to another person or body. As before it has to be a written agreement, as in a will, and signed by the assignor, but it is essential you have an experienced copyright attorney advising you.
Copyright – The Moral Rights
Moral Rights are both a basic human right and a part of copyright law. Moral Rights ensure that the photographer is rightfully acknowledged as the creator of his or her images.
There are four moral rights.
The right to be credited.
This is the photographer’s right to have their name appear with the photograph on every occasion it is published, exhibited, broadcasted, or appears in a film. There is however a long list of exceptions, such as when an image is used for the reporting of news events, publishing in encyclopedias, use in parliamentary or judicial proceedings, etc.
In UK law the photographer must clearly assert this right in writing on every film, print, and digital image put into circulation before moral rights can be applied. Simply adding the copyright symbol, year of creation and photographers name is not enough to be recognised as an assertion of this right in UK law ( although the law does not specify in what form the assertion should appear!). The Design and Artists Copyright Society (DACS UK) suggest using the following wordage to assert your moral right to be credited –
“I, ‘name’, hereby asserts his/her moral right to be identified as the photographer of ‘Title of Work’ in accordance with The Copyright Designs and Patents Act of 1988.”
The right to object to derogatory treatment of a work.
This right gives the photographer the legal right to object to mistreatment of his image in a way that is “prejudicial to the honour and reputation of the photographer.” This right does not need to be asserted in UK law.
The right not to have a work falsely attributed to a photographer.
This right belongs to everyone, not just the creator of a photograph. It could be used to defend against a case of an unscrupulous publisher using the name of a prestigious photographer to add credibility to the images in the publication, that the named photographer never took. The photographer has the right to a legal remedy in such cases.
The right to privacy in respect of certain photographs and films
This right applies to everyone, not just photographers. There is no UK right of privacy, but in France for example the privacy laws are very strict. Although moral rights apply in most countries, interpretation can vary greatly between them as in this specific case. For absolute safety, if you have photographs featuring people, then for complete protection, you must ensure you have signed model release forms that permit you to use the images without restrictions.
Duration of and waiving of Moral Rights
Note that unlike copyright, your moral rights cannot be assigned to anyone else. They are yours and yours alone. You may, by a written and signed agreement, with another specific person or body, waive your moral rights for specific images. Such an agreement is called a waiver. So even if you have assigned copyright to another person or body, you can still enforce your moral rights, unless you have also signed a waiver with that person or body, in which case you have lost the right to enforce your moral rights against that person or body.
All moral rights continue to be in force for the creator of an image for as long as the copyright remains in force in an image, except the right not to have a work falsely attributed, which only exists for a period of 20 years after the photographers death in the U.K.
Proving Your Copyright
If it is necessary to proceed to the courts to process a case of copyright infringement, you must be able to show both that you created the work, and that the date of creation of your work is before the date of creation of the alleged copy. Metadata may be helpful, but since such data is open to manipulation such data will not be considered by the courts as probative.
There are many suggestions on ways of proving the date of creation, amongst which are –
- Mailing a copy of the work in a sealed envelope and posting it to yourself by registered post, and leaving it sealed upon receipt by yourself.
- Leaving copies with a solicitor or other agent
- Using one of the copyright registration agencies that are available.
With regard to the last item, note that in the UK the registration agencies are private agencies, unlike the system in the United States (see below) where the registration of photographs is dealt with by the US Copyright Office, an official public body whose evidence would carry much more weight in a court of law.
Proving Copyright with United States Copyright Registration
Full details of this procedure are available at The U.S. Copyright Office website. Click on the Copyright Basics heading and follow the links to the registration chapters. Registering copyright in the U.S. is not mandatory, but it has some clear advantages. It can provide absolute proof of the existence of the work and date of creation/publication.
For works of U.S origin an infringement may not be filed in federal court unless the work has been registered, and it is highly advantageous to register the work BEFORE publication. Thus, both statutory damages and attorney’s fees may be available to the copyright owner in a court ruling. Otherwise, only an award of actual damages and profits would be available to the copyright owner.