Own-it | Intellectual Property Know-How for Creative Businesses

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Who owns the copyright in the photograph?

Published 26.09.11 at 16:20

According to the Copyright Designs and Patents Act the first owner of any copyright is the creator of that work. Interpreting this literally would suggest that, in the case of photographs, this is the person who takes the photo i.e. the person who presses the button. However, case law suggests that this may not always be the case. In Creation Records Ltd and others v News Groups Newspapers Ltd, Lloyd J said:

"It seems to me that ordinarily the creator of a photograph is the person who takes it. There may be cases where one person sets up the scene to be photographed (the position and angle of the camera and all the necessary settings) and directs a second person to press the shutter release button at a moment chosen by the first, in which case it would be the first, not the second, who creates the photograph."

This seems to depict instances in fashion photography where the commissioned photographer poses the model, sets the scenery but often asks an assistant to press the button as he surveys the scene. In these scenarios Lloyd J suggests that the senior photographer who designed the set retains the copyright even though he did not strictly take the photo.

This case sets a persuasive precedent but litigation is by no means certain and another court on another day may interpret the law differently. To be on the safe side it would be prudent to get the assistant to sign an agreement stating that the photographer will be the owner of any copyright created.

The legal position would of course be different if the photographer and his assistant were merely performing their duties in the course of employment. The rights holder in these situations would be the employer save for instances where a clause in the employee's employment contract states otherwise.

Employment contracts or other agreements may also contain a clause stating that all moral rights are waived. This would prevent the creator of any photographs from being able to assert their right to be credited as the author of a photograph.

Earlier copyright legislation dictated that the owner of copyright in photographs was the owner of the material that it was taken on i.e. the owner of the film. If that were still the case then if a monkey took some photos with your camera you would retain the copyright. Now the situation is a little more complicated. This story provides us with an example where the more literal interpretation of 'creator' would most probably still be applied. The author of the 1709 blog argues that where the photographer is not human the work should be in the public domain!

And so it cannot be stressed enough that, in the interest of certainty, the best idea is to have written agreements in place stating who is to retain any intellectual property rights created as a result of the collaboration.

Article by Joe Walsh

Photograph (some rights reserved) by mondays child

 

Please note that this article discusses the legal position in the UK at the time of publication. It provides general information only but is not to be regarded as legal advice. You must take advice from a specialist lawyer in relation to your specific circumstances. Further, you should seek additional legal advice when dealing with parties based in other parts of the world or works originating from other parts of the world as the legal position may vary.

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