Authorship
However this does not apply to employed photographers for work created in the course of their employment and it should also be remembered that `person’ includes the idea of a `legal person’, ie, a company or organisation.
This can, and does cause problems when trying to identify the rightful owner of `extended’ or `revived’ copyright. `Extended’ and `revived’ copyright are new terms written into UK law as the result of agreement within the European Union that copyright legislation is economically and culturally important enough to need a common approach across all the member states.
In order to achieve this common approach the duration of existing copyright protection periods have been extended and, most unusually, copyright protection periods which have expired have been revived to give a period of protection equivalent to the new minimum standard of 70 years after the death of the author. In parallel with this, the new legislation sets out how to decide ownership since ownership and authorship of copyright often rest in different hands. The detail is discussed below.
Ownership of copyright
In general, the author of the work is the first owner of any copyright in it, so photographers now have the first ownership of copyright in their work whether it was commissioned or not.
Ownership of the new ‘extended’ copyright is as follows:
The person who was the owner of the copyright immediately before January 1st 1996 is the owner of the extended copyright, unless they owned it for less than the full term of copyright, in which case the extended copyright goes to the person entitled to the copyright after the intitial owner’s term has expired. This date at the beginning of a year is there simply to give legal certainty to the changes and to avoid the need in the majority of cases to make messy calculations over duration. Nevertheless, specialist legal advice may be needed to clarify ownership when the need arises because the legislation does contain other dates which may be relevant for particular purposes or territories.
Ownership of the new ‘revived’ copyright is as follows:
The person who was the owner of the copyright immediately before expiry reacquires it. If that person died before January 1st 1996 (or, in the case of a legal person such as a company, ceased to exist) the copyright reverts to the author, or the administrator of the author’s estate if the author is also dead. The `author’ for these purposes is always the person who created the photograph (notwithstanding different definitions of authorship in the 1911 and 1956 Copyright Acts). If there is no administrator the copyright passes to the UK government.
Specialist legal advice may be needed to clarify the situation because of the changing provisions as to first ownership of copyright since 1862. Copyright frequently belonged under pre-1988 legislation to the owner of the negative or the commissioner of the photograph. Other complications such as bankruptcy, insolvent companies and the like may cloud the issue and will also require such specialist advice if the situation warrants it.
Copyright can be assigned to another person but only if the photographer agrees. An assignment of copyright should be in writing signed by or on behalf of the assignor but a verbal or contractual agreement will often, in practice, be equally effective. Assignments of copyright in all future work created for a client, should not be agreed because this is rarely in the best interests of the photographer. Each commission should be negotiated separately. The circumstances of one job will be different from another. It may be preferable to retain control of material from one session but not from another for the same client.
Employed photographers
Employed photographers do not own copyright in work created `in the course of their employment’ unless they have an agreement to the contrary.
A good yardstick for defining `employed’ in the UK is if an employer pays PAYE and National Insurance, but this is not conclusive. Work on a freelance basis does not constitute being `employed’. Photographers working freelance on a six month contract or a residency will normally be required to sign a contract of employment. They should instead sign a contract for services, preferably one which has been drawn up on professional advice and which deals fairly with the interests of all parties.
Ownership of copyright in photographs taken by employed photographers is a grey area and the issue should be properly addressed by employers and employees, both of whom should be clear where they want to stand at the end of this!
It should also be remembered that photographers who form themselves into a limited liability company can also be employees and that copyright will belong to the company ( and may therefore be lost in the event of receivership or liquidation unless copyright has been retained by the photographer). This issue should be sorted out on the formation of the company, but can be done at any time and should always be done with good legal advice.
Computer-generated works
A new feature in the 1988 Act was the provision from August 1 1989 for ‘work that is generated by computer in circumstances such that there is no human author of the work’ with copyright expiry 50 years from the end of the calendar year in which the work is made. Having ruled out human authorship and copyright expiry based on the usual author’s life plus so many years, by sleight of hand the Act proceeds to say the author of this kind of work is taken to be the ‘person by whom the arrangements necessary for the creation of the work are undertaken’; a formula which allows assertion of the moral right against ‘false attribution’ but excludes the `integrity’ or ‘paternity’ moral rights for obvious reasons. (See the section on Moral Rights for an explanation of these rights).
This provision has yet to be tested in the courts and would appear to apply mostly to scientific, technical and remote surveillance photography where exposure timing and frequency, focus and tracking, etc, are all computer controlled. It goes without saying that this section of the Act does not create this novel kind of copyright ownership for such things as automatic copying or manipulation of photographs or film, artistic works of all kinds and other works of ‘artistic craftsmanship’ which of course, may have their own copyright which will require to be cleared before any such copying is undertaken.
Duration of copyright protection from August 1 1989
The duration of copyright in photographs taken on or after August 1 1989 whose country of origin is a European Economic Area state or which are taken by a national of an EFA state is now the same as for all other artistic works – 70 years from the end of the year in which the author dies.
Photographs by a national of a non-EEA state whose country of origin is not an EEA state have a duration which is that granted in their country of origin up to a maximum of life plus 70 years. ‘Country of origin’ is a new concept which has been introduced to distinguish between EEA originated works and those which are not. ‘Country of origin’ has a complex definition which can involve determining the author’s nationality, or the date of creation of the photograph, or the date and place of first publication in order to arrive at the actual duration of protection. In any event duration in the UK will not exceed life plus 70 years.
For works of joint authorship, the duration of copyright is 70 years from the end of the year of the death of the last surviving author, provided that at least one of the authors was a national of an EEA state or the photograph’s country of origin is an EEA state. For other photographs duration is that granted by their ‘country of origin’ up to a maximum of life plus 70 years.
Again, although this change happened from January 1 1996 in response to the EU copyright harmonisation measures it applies equally to all photographs taken from August 1 1989. The 50 year period of protection introduced by the 1988 Act has been superseded. Apart from photographs subject to Parliament, international organisations or non-EEA copyright there are now no photographs taken in the period August 1 1989 to January 11996 to which the 50 year rule applies.
For works taken by unknown photographers duration of copyright is now 70 years from the end of the year in which the photograph was first made available to the public (whether published, exhibited, shown in a film or broadcast) provided this takes place within 70 years from the end of the year in which the photograph was taken. If not made available to the public copyright expires 70 years from the end of the year in which the photograph was taken.
If the photograph carries a pseudonym as credit, or there is no credit at all the author will be considered unknown if actual identity cannot be ascertained by `reasonable enquiry’.
Photographs which are subject to Crown copyright have different rules. Crown copyright in the UK now lasts for a maximum of 125 years from the end of the year in which the photograph was taken. If the photograph is commercially published within 75 years of the end of the year in which it was taken, copyright lasts for 50 years from the end of the year of publication. In other countries where Crown copyright also exists, eg, Australia, Canada, etc, but its duration is controlled by the legislation of their independent parliaments, duration is still only 50 years from making or publication. When Parliament or certain international organisations (like the UN, Interpol, etc) are the copyright owners, it will usually be for 50 years from the end of the year in which the photograph was taken.
Duration of copyright protection before August 1 1989
It is important to remember that the provisions of the Acts dealing with copyright of 1862, 1911 and 1956 were each carried over by the superseding Act up to the 1988 Act and still apply to photographs taken before the commencement of the 1988 Act on August 1 1989. Add to this the EU harmonisation measures and it will be well into the next century before the cumulative effects become history. The 1911 Act (which came into force on July 1 1912) granted copyright protection in a photograph for 50 years from the end of the year in which the negative was made, replacing the 7 year period of protection for unpublished works or 42 years from date of first publication granted by the 1862 Act. `Authorship’ was placed in the hands of whoever owned the original negative at the time the picture was taken, not necessarily the person who took the photograph. If the photograph was commissioned the copyright belonged to the commissioner unless otherwise agreed.
The 1956 Act (which came into force on June 1 1957) granted copyright protection in a photograph for 50 years from the end of the year of first publication and also gave perpetual copyright to unpublished photographs taken from the commencement of the Act. ‘Published’ meant ( and still does) issuing reproductions of a work to the public. A photograph exhibited in an exhibition was not ‘published’ but a printed version in the catalogue of the same exhibition would have been. It did not include a contact sheet or supplies of unpublished prints stored for possible use but never issued to the public. Again, ownership of the film when the picture was taken determined authorship and, unless otherwise agreed, the commissioner was the owner of copyright.
The 1956 Act, whilst creating perpetual copyright in unpublished photographs taken on or after June 1 1957, limited copyright protection to 50 years for all photographs (including those subject to Crown copyright) taken before this date. The 1988 Act removed perpetual copyright for all photographs (again, including those subject to Crown copyright) taken from June 1 1957, so photographs made but not published during the period from June 1 1957 to July 31 1989 will remain in copyright until at least midnight on December 31 2039. The EU harmonisation measures which came into effect from January 1 1996 extend the period of protection to 70 years from the end of the year in which the author of the photograph died, provided the author was a national of a Member State of the European Economic Area or the `country of origin’ of the photograph was such a state. Photographs subject to Crown or international organisations copyright are unaffected by this change.
Photographs taken before June 1 1957 receive similar treatment, so duration is now life of the author (or last surviving author) plus 70 years for a national of a Member State of the European Economic Area or a photograph whose `country of origin’ is in an EEA state, provided the work was in copyright in one member state on July 1 1995. If Crown or international organisations copyright applies duration remains 50 years from the end of the year in which made.
No revival takes place for a national of a non-EEA state where the `country of origin’ is also a non-EEA state, but their photographs are protected to the extent they were protected by the author’s `country of origin’, again up to a maximum of life plus 70 years or the end of 2039, whichever is the later.
Unpublished photographs by unknown photographers of any date prior to August 1 1989 (Where neither Crown nor international organisations copyright applies) have protection for 70 years from the end of the year in which they were made. If made available to the public during this time the period of protection is either 70 years from the end of year when it was first made available, or the end of 2039, whichever is the later.
Published photographs of any date prior to August 1 1989 by unknown photographers are now protected either for 70 years from the end of the year in which the photograph was made, or 70 years from the end of the year in which it was first made available to the public, or the end of 2039, whichever is the later. Where Crown or international organisations copyright applies, duration is never less than 50 years from the end of the year in which they were published.
Again, for a national of a non-EEA state where the `country of origin’ is also a non-EEA state, protection is that given by their `country of origin’ up to a maximum of life plus 70 years or the end of 2039, whichever is the later.
These changes are due to the principle of equal treatment throughout the Member States of the European Union and the uncertainty over the length of the `revived’ copyright is due to the fact that this is governed by the longest period of protection granted by one of the Member States of the European Economic Area.
Whatever the period of protection a work subject to `revived’ rights can be used by anyone within the EEA without the permission of the copyright owner. Provided a notice of `intent to use’ is served on the copyright owner and the user is prepared to pay a `reasonable royalty or other remuneration’ the owner of a work subject to `revived’ copyright cannot say no to an intended use. What is reasonable in any particular circumstances may be determined by the Copyright Tribunal (administered by The Patent Office) in the absence of agreement between copyright owner and user. Once again this is a matter for specialist legal advice in the light of particular circumstances, especially as, in some cases, `revived’ copyright works may be administered by a collecting society and then the `reasonable royalty or other remuneration’ provisions do not apply. For those needing further details on this now complex area of copyright legislation:
The Copyright Directorate
The Patent Office
25 Southampton Buildings
LONDON
WC2A lAY
Tel: 020 7438 4777
Website http://www.patent.gov.uk
or
Design and Artists Copyright Society Ltd (DACS)
Parchment House
13 Northburgh Street
LONDON
EC1V 0JP
Tel: 020 7336 8811
can provide additional information. (See also the `Existing copies of `revived’ copyright photographs’ and `Limited companies and lapsed organisations’ in the section on `Frequent problems’ later in this publication.)
Moral Rights
These are rights which remain with the author of a photograph, irrespective of what happens to the copyright. They were introduced by the 1988 Act and apply to all photographs protected by copyright. They cannot be assigned in the way copyright can be assigned. On the death of someone holding the moral rights which are explained in the following sections, the rights pass to the person the author has nominated in their will. If there is no will, or the will does not mention the subject, the rights are enforceable by the person who inherits the copyright in the photographs or, if the copyright does not form part of the estate, the author’s personal representatives. There are three basic rights for photographers and a right of privacy for commissioners of photographs as follows:
Objection to false attribution
This is the right of all photographers (and of anyone else, for that matter) not to have a work falsely attributed to them. It is an automatic right, does not have to be asserted in writing and applies to all photographers whether employed or not and for whatever purpose the work was made. Unlike the other moral rights this one expires 20 years after the death of the photographer. This is one of the reasons photographers should be very careful about bequests. Their heirs should be those that can be trusted to protect their rights. The good reasons for making a will are explained later in this publication and should be read with care.
Safeguarding of privacy in work commissioned for private and domestic purposes
This is a right which belongs to the client and was devised to protect the privacy of those who commissioned the services of a photographer to record weddings, graduation portraits, momentous and personal family gatherings and may also include the recording of medical conditions. The 1988 Act removed copyright in commissioned work from the commissioner and handed it to the photographer, leaving the commissioner exposed to possible publication of private photographs and exploitation by unscrupulous photographers. The photographer now owns the copyright but cannot publish, exhibit or broadcast the photographs without the permission of the commissioner. The photographer may not display prints in a shop window or use them in a portfolio and certainly cannot use them for financial gain should the subject of the photographs become newsworthy. This right does not apply to any photographs taken before August 1 1989. (see ‘privacy’ in the section on ‘Frequent problems’ later in this publication)
Objection to derogatory treatment of a work (integrity right)
This right allows objection by photographers or their heirs to having their work treated in a manner which amounts to distortion or mutilation or is otherwise damaging to their `honour or reputation’. Such distortion or mutilation could include manual or digital manipulation, cropping, masking, colorisation, `comping’ (assembly into a composite image), morphing, retouching – anything in fact from moving an inconveniently placed Pyramid to distorting the anatomy of a normally endowed model to ensure that she looks like every other Page 3 girl. If the result is damaging to the reputation of the author, an objection may be lodged. This is an automatic right and there is no need to assert it in order to acquire the right. This right is not generally available to employed photographers except in particular circumstances. Nor does the right to object apply to photographs taken for reporting current events, or, in most cases, for publication in newspapers or magazines or for use in collective reference works such as encyclopaedias. The right does not apply to `anything done for the purpose of avoiding the commission of an offence’. This could include offences under prohibited sexual activity, indecency, obscenity, race relations, data or child protection, judicial proceedings, official secrecy, public order or emergency powers legislation.
Authorship acknowledgement (paternity right)
The creator of a photographic image now has what has been called the `paternity’ right to have a reasonably prominent credit whenever a work is commercially published, exhibited in public, broadcast, or included in a film shown in public or issued to the public. This is not an automatic right and must be asserted in writing.
If the assertion is included in a document assigning copyright to someone else, the right can be enforced against that person and anyone else to whom the copyright is subsequently assigned or licensed. If the assertion is in some other document, in a letter for instance, signed by the author, the right can only be enforced against those who have been notified. Paperwork and photographs rarely stay together and it may be difficult to assert rights if photographs and documents are in the hands of someone with no brief to keep them together. When photographs are published in a book, it is advisable to have a notice that these rights have been asserted by the photographer along with the other copyright details so giving protection to the interests of all concerned. Where the photographer is identified on prints, mounts, frames or anything else to which photographs are attached, the right to a credit will generally apply whenever photographs are exhibited in public, whether or not the identification is still present or visible.
The right does not generally apply to employees for work done in the course of their employment, although again there are exceptions to this. Nor, oddly enough, does it apply to photographs taken for the purposes of reporting current events or, in most cases, for publication in newspapers, magazines or periodicals, or in collective reference works. However, it has always been the general practice, often provided for by contract, for acknowledgements to be given in editorial contexts and the practice still continues. This will generally give photographers contractual rights even if they have no moral right to a credit. Most publications are content to credit their contributing photographers. It ensures a ready supply of material from sources who might be reluctant to cooperate without a printed acknowledgement and such acknowledgements can enhance the reputation of the publication.
Anyone acting on behalf of a photographer such as an agent, picture library, archive or museum, should ensure that the author’s assertion of `paternity’ rights is notified to all potential users of the photographer’s material. The photographer might be able to sue for negligence if there was a failure to take steps to get this right observed by users.
Publication right
This new right came into effect on December 1 1996. It is a new property right equivalent to copyright which gives protection for 25 years from the end of the year of publication to the individual or legal person who publishes a photograph which has never been previously published, whose copyright has expired and whose copyright was not Crown or Parliamentary copyright. The right only applies if the publisher, (or at least one of them, in the case of a joint publication) is a national of an EEA state and first publication also takes place within the EEA. The right only comes into being if the owner of the physical object, be it negative or print, etc, agrees to the publication. The right works in the same way as normal copyright. Publication is defined as including any communication to the public, not merely issuing copies to the public.
Database right
This is another new right effective from January 1 1998, comparable to copyright, which is designed to protect investment in the selection, collection and assembly of the contents of a database which may be in electronic or manual form. The right, which belongs in the first instance to the maker of the database, is intended to protect against substantial extraction or reutilisation of data and gives protection for 15 years from the end of the year in which the database is made. This right is in addition to any copyright in the contents of the database as an original work and is intended to protect ‘sweat of the brow’ undertakings of ‘works, data or other material’ which are ‘arranged in a systematic or methodical way’ like compilations of the works of particular photographers organised by stylistic features or topic; electronic catalogues of out of copyright photography, etc. Quite how this right will work in practice remains to be seen. As with copyright, database right is subject to general and non- commercial educational and research copying exceptions and fair dealing or ‘fair practice’. The right only arises if the maker of the database is a person, real or ‘legal’ who satisfies EEA nationality requirements.