Who owns the copyright – the photographer or the client?
Who owns the copyright – the photographer or the client?
Published: 12.11.12 at 13:22
To avoid disputes over copyright ownership photographers should enter into written agreements with their clients setting out their respective rights. A recent case provides a good example of a situation where a simple agreement would have avoided a large amount of trouble and expense for both parties:
Tyson Sadlo, a professional photographer, was commissioned by a publishing company to take photographs of the well known businesswoman, Karren Brady. The photographs were to be published in Today's Business Woman. The publishing company later authorised further publication of the photographs in BUPA Health Magazine and on the Celebrity Angels website.
Mr Sadlo claimed copyright infringement on the basis that this further publication was outside the scope of the original agreement.
The publishing company argued that it, and not Mr Sadlo, owned the copyright in the photographs or alternatively that it was joint owner thereof and so could authorise further publication of the photographs should it so choose.
Who owns the copyright?
The Copyright, Designs and Patents Act 1988 provides that the author of a photograph is the person who creates it. The author will be the first holder of the copyright in the photograph unless this was created in the course of employment in which case the employer will own the copyright.
In Creation Records Limited v News Group Newspapers, Lloyd J explained that:
"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 necessary settings) and directs a second person to press the shutter at a moment chosen by the first, in which case it would be the first, not the second, who creates the photograph. There may also be cases of collaboration between the person behind the camera and one or more others in which the actual photographer has greater input, although no complete control of the creation of the photograph, in which case it would be the first, not the second, who creates the photograph. There may also be cases of collaboration between the person behind the camera and one or more others in which the actual photographer has greater input, although no complete control of the creation of the photograph, in which case it may be a work of joint creation and joint authorship."
It is important to bear in mind that it is the creativity involved in creating the photograph which is the subject of the copyright. Hence the emphasis in Lloyd J's judgment on the camera angles and settings and the control of the scene at the instant at which the photograph is taken.
In the present case Mr Sadlo accepted that there was a sense in which the photo-shoot was a team effort - two employees of the publishing company had been present at the photo shoot. The brief to Mr Sadlo also contained the following instructions:
- Cover shot - a smart and professional portrait shot of Karren in a business-like but approachable pose. Please allow plenty of space around her for cover lines and the masthead.
- Inside pages - mostly portrait shots ranging from one more serious business pose as a link to her judging role in The Apprentice (perhaps similar to your Paris Hilton shot) through to more relaxed shots, such as looking off camera laughing. Perhaps we could also try Karren sitting on the sofa with a laptop or cup of tea, or marking up a business contract.
However, the judge did not think that these general instructions to the photographer as to the type of photographs required were sufficient to make anyone other than Mr Sadlo the author of the photographs. Furthermore there was no evidence to suggest that the two employees were in control of any aspect of the taking of the photographs. The photographs were exclusively Mr Sadlo's creation. Accordingly, Mr Sadlo was the first owner of the copyright.
Had the photographer assigned his copyright?
The publishers claimed that a written contract, alleged to have been sent to Mr Sadlo before the photo-shoot took place, contained a clause whereby the copyright in the photographs was to be assigned to the client.
Mr Sadlo disputed that this contract had ever been received. The judge decided that the evidence did not show that the contract had been sent to Mr Sadlo - the party's email correspondence made no reference to the delivery or receipt of any such contract.
In the absence of an express contractual assignment, the publishers argued that it was an implied term of the commission that Mr Sadlo would agree to an assignment of the copyright.
A court will not imply terms into a contract lightly.
"If a court does imply a term, it should make no greater incursion into the rights of the copyright owner than is necessary to meet the case." This is known as the "minimalist approach".
The parties had in contemplation the publication of the material in Today's Business Woman. However, it was not established that the parties had any wider use in mind at the time when the agreement was concluded.
The judge decided that it was not necessary to imply into the agreement any wider term than that accepted by the parties, namely an agreement to use the results of the photo-shoot for publication in Today's Business Woman.
And so Mr Sadlo retained the copyright which, as author of the photographs, belonged initially to him. The further publication of the photographs in BUPA Health Magazine and on the Celebrity Angels website had not been agreed to by Mr Sadlo and so he was entitled to damages for copyright infringement.
It is important to remember that, in the absence of any agreement to the contrary, a photographer that has been commissioned to take photographs will retain the copyright in the resulting work. The surest way to assign copyright is by way of a written agreement as a court will be hesitant to imply terms into an agreement where it is not clear that this was the parties' intention.
Article by Joe Walsh
Photograph (some rights reserved) by Kees van Mansom