8. Frequent Problems

In this section we have tried to deal with some of the more frequent questions asked of BPLC members.

Privacy

Owing to the excesses of certain sections of the media and the unscrupulous behaviour of a few photographers and others with an eye for the main chance, privacy has become and remains a hot potato.

It appears likely that eventually greater restrictions will be placed on what can and what cannot be photographed. (The right to privacy in work commissioned for private and domestic purposes is discussed above in the section on moral rights.)

At present, the restrictions are generally moral ones. There is no specific legislation in the UK to prevent photographers from taking pictures which infringe privacy. The restrictions lie in the use of the pictures and even then, there are those who will publish and be damned because the extra sales generated may be worth it financially and the chances of getting anything worse than a slapped wrist are unlikely.

The law of confidence can sometimes be a powerful weapon, but only in restricted and none too clearly defined circumstances. In the UK, photographs of people taken in the street or in a public place are not restricted by copyright law as to use. However, such pictures could be subject to the laws of libel. It is advisable to establish how pictures like these will be used if supplying from stock or on a commissioned basis. If a client intends to suggest that a percentage of a crowd suffer from a debilitating disease, have unnatural habits or are simply divorced and the crowd is peopled with recognisable faces, they could raise a very expensive objection.

What is a crowd ? London Bridge at 9 o’clock in the morning is a crowd. So is a room full of people or the start of the London Marathon. Some claim that a crowd is more than half a dozen people, some that the figure should be twelve and others that a crowd has to be hundreds. It is clearly impossible to supply a model release in such circumstances but it is important to realise that objections could be raised and care should be taken when supplying such pictures, particularly for advertising and promotional purposes.

There is no UK equivalent to the American rights of privacy and publicity, which restrict exploitation of an individual’s likeness for commercial purposes. However, famous people and others may not take kindly to such uses and often take legal action against anyone who tries it. Photographers are bound by law to observe certain rules relating to breaches of trust or confidence when photographing people, especially children.

Photographs of buildings taken from the street or a public place are normally legal but beware of using such photographs for advertising or promotional purposes, or for anything which could be construed as derogatory, without seeking consent from someone with the authority to grant it. It’s asking for trouble if for instance, pictures are supplied of a thatched cottage for an insurance promotion and the owner of the cottage has been turned down by the same insurance company. The Advertising Standards Authority in the UK, and now the Press Complaints Commission, increasingly tend to deal with individual privacy issues far more stringently than does the law.

Photographs of buildings, and of sculptures, models for buildings or works of artistic craftsmanship permanently situated in a public place or premises open to the public, do not infringe copyright, but beware of using them for advertising or promotional purposes without consent. It could involve breach of contract if photography is specifically prohibited.

Model Releases

It is advisable to obtain written permission whenever taking photographs of people, whether professional models or not. Certainly, on a commercial shoot, it would be absurd to forget this essential document which will enable the rights owner to make use of the material for the agreed purposes. In advertising, a model release must be available and many picture libraries and agencies will refuse to accept stock without adequate releases. Suitable Model Release forms can be obtained from some BPLC members.

Multiple copyrights in the same artistic work

There is often more than one copyright involved in a photograph. Retouching that substantially changes rather than enhances the photograph, bits of different copyright photographs in a collage, pack shots with a copyright logo etc, all could have justifiable copyright claims. Anyone making use of such an image must ensure that clearance is obtained from these other copyright owners for the initial and all further uses of the finished product.

Retouching

This is an aspect of the law which is shrouded in fog and has all the makings of a lawyers benefit as there are many different views on the issues involved, so beware! If a client has employed a retoucher to work, with the consent of the copyright owner, on a print, duplicate transparency or copy negative that they themselves have had made and the retouching has sufficiently changed the original so that it is substantially a new work, there is dual copyright in the retouched copy and the client has the right to retain it. Copyright in the original work is not affected by the existence of a new copyright in the retouched version.

Retouching a copyright work without permission is an infringement and may also breach moral rights. If retouching has been done with consent on an original transparency, negative or print, these items remain the property of the original rights owner who has the right to retain them, although there is again dual copyright in the final image and the permission of the client and the retoucher must be sought before making commercial use of the results.

If the retouching was done without the consent of the copyright owner, he or she will have the right to claim for damage to the original and there may be moral rights implications. Retouching an out-of-copyright photograph, again to a sufficient degree so that it is a different image, creates a new copyright in the combined work but does not affect other prints of the original. Copyright in the new image then lasts for 70 years from the end of the year in which the retoucher dies. Exactly the same principles apply to digital or electronic copies.

Copying by implied consent

With the change in the law many organisations, businesses and educational institutions are now taking the tracing and crediting of copyright ownership and authorship in photography a great deal more seriously than they have ever done in the past. However, because of the time, expense and uncertainty involved copyright clearance requests sent to a last known address or care of an organisation that might be able to identify the copyright owner are often phrased in such a way that, if no reply is received within a given time, it will be assumed that consent to the request has been granted and copying for the stated purpose will take place regardless. If the request is reasonable, states the limits of use and offers credits and remuneration, all well and good. If it does not the BPLC advises that an ultimatum of this kind should be rejected in exactly the same way as a demand for a full assignment of copyright and for the same reasons. Whether accepting or rejecting, a response is always advisable because if the work is used in a way which is not acceptable or is not in accordance with the offer, attempts to gain redress may be prejudiced by the user claiming that no response implied full consent to their actions, which is a difficult and expensive argument to refute, especially if lawyers become involved.

If a photograph is issued at some time with no intention to charge for its reproduction, such as for public relations or related purposes, there may be an implied consent for the recipient to copy this and to use it as often as they wish without consulting the copyright owner further as long as the usage is clearly within the original purposes. Reproduction or sale of such photographs for gain in contexts not originally envisaged by the issuer may be outside this implied consent and the copyright owner may have to be consulted in the normal way before any reproduction takes place.

Copyright owners of this kind of material who wish to retain control over usage outside of that initially intended are advised to mark it `free of fee’, briefly describing the conditions under which this applies and prohibit copying after a certain date without prior consent. Once again, if a credit is required whenever such a photograph is reproduced this must be stated and preferably on the print, transparency mount or alongside a digital image, etc.

Existing copies of ‘revived’ copyright photographs

Obviously photographs that are subject to the new `revived’ copyright provisions whether published or unpublished have been legitimately copied and collected ever since they entered public domain. Even although these are now back in copyright such copies can still be used within the EEA without the consent of the rights owner or the need to serve notice of `intent to use’ provided it can be shown the copies were in existence, or that arrangements had been made to issue copies to the public, prior to January 1 1996.

Limited companies and lapsed organisations

The EU harmonisation measures creating `revived’ copyright give the problem of tracing ownership of the new rights in order, at the very least, to serve the notice of `intent to use’; a task which is particularly complicated for unpublished photographs of uncertain date in this category because so many of them were routinely taken by unidentified photographers and the rights were owned by companies and organisations that have ceased to trade or been wound up long ago.

There is no simple answer to this problem. The options are to make routine checks with the Archives Section of the UK Companies House and also the Public Record Office, or with the resources of British Library to show that a UK based company or organisation really is defunct and that there appears to be nobody to claim the rights. Enquiry of The Copyright Office at Her Majesty’s Stationery Office or the Treasury Solicitors may also be advisable.

A record kept of this kind of enquiry is vital in case someone subsequently comes forward to claim the rights and the issue is important enough to argue before a court. Also, always remember when it is reasonable to assume the author of a photograph died 70 or more calendar years ago and `it is not possible by reasonable enquiry to ascertain the identity of the author’ that copyright expiry can be assumed. Most photographs carry inherent clues as to their probable date of exposure so a little bit of commonsense in the interpretation of the image may save an awful lot of trouble!

What can’t be done

There are usually stringent restrictions on photography in theatres, auditoria and concert halls, etc. The rights of the performers could be infringed by filming or making a video of substantial parts of a performance. The copyright in still photography taken at such venues will belong to the photographer, or their employer, whatever the restrictions but commercial use will be in breach of contract. The contract could be the terms and conditions printed on the back of the ticket or a document which photographers might be required to sign before they are allowed on the premises. It could also be part of an annual membership subscription. Remember also that surreptitious entry to an event or a property could expose the intruder to an action for trespass and that, although copyright in any photographs taken would belong to the photographer who took them, however entry was achieved, making any commercial use of the results might not be lawful. Photographing or copying individual frames from a film infringes the copyright in the film. A television broadcast can be photographed but only for private and domestic purposes.

It is permitted to refer to a copyright work for artist’s reference, so long as the final work does not reproduce `any substantial part’ of the original. If the result is recognisable as having been derived from the original source, the second work may be liable for a fee or damages which could be substantial, according to what use has been made of the derivative work.

What constitutes `any substantial part’ has not been clearly defined. There have been countless legal decisions on individual cases, but although some general principles have been laid down, there is often room for argument. The Oxford English Dictionary, in amongst a mass of obscure references to Middle English, lists one clear definition. `Of ample or considerable amount, quantity, or dimensions’. The BPLC are indebted to Geoffrey Adams for his intelligent and witty definition: “Each instance must be examined in the light of the particular circumstances but the courts have made it clear that it’s the quality of the extract that counts, not the quantity. A relatively small extract could be regarded as substantial if it expressed the essence of the whole photograph. Thus the lips of Marilyn Monroe extracted from a head to toe photograph constitute `a substantial amount’.”

It is illegal to take photographs in any court of law everywhere in the UK, except Scotland. Even there, it may be done only with the permission of the court authorities and such permission has never been given! Remember also that a court of law is a process not just a place, so the prohibition applies when a judge and jury go out to inspect or view something in connection with a case being tried. Any photographs that have ever appeared, other than occasional pictures of the murderer Crippen in the dock which were taken in the 1920s before the law changed, are set-up pictures taken during training sessions for court officials and the like – or illegal! (It is also, incidentally, illegal to draw in court and those court drawings which appear on television are produced by a very small group of artists who are obliged to work from memory in the corridors outside the courtrooms.) It is also forbidden to take photographs in the Houses of Parliament without permission from the authorities there. There are many other restrictions too from post offices to police stations, prisons and other government buildings, especially those related to the defence of the UK. Photography in hospitals or schools is not normally allowed except with permission from the authorities responsible for running these places.

Bank notes, coins and postage stamps are not only protected by copyright, they also have their own special laws and regulations relating to protection from fraud or forgery as do such things as the Royal Arms and Insignia, etc. For guidance on these, the contact points are:

Bank notes
Principal, Issue Office, Bank of England, LONDON EC2R 8AH (Tel: 020 7601 4028)

Coinage
Debt and Reserves Management Team, HM Treasury, Parliament Street, LONDON SW1P 3AG (Tel: 020 7270 1832)

Postage Stamps
Manager of Special Stamps, Royal Mail, Royal London House, 22-25 Finsbury Square, LONDON EC2A INL (Tel: 020 7614 7013)

Further guidance on the reproduction of postage stamps and bank notes generally may also be obtained from:

The British Library
Philatelic Collections
Great Russell Street
LONDON
WC1B 3DG
Tel: 020 7412 7635

For guidance on reproduction of Royal Arms and Insignia contact:

Lord Chamberlain’s Office
Buckingham Palace
LONDON
SWiA 1AA
Tel: 020 7930 4832

Maps and charts in whatever form are, of course, also protected by copyright. In the UK such items, where produced on official authority have their copyright administered by the Ordnance Survey, British Geological Survey, the Civil Aviation Authority or the United Kingdom Hydrographic Office. For guidance on these items, the contact points are:

Mapping

British Geological Survey Kingsley Dunham Centre,
Keyworth, NOTTINGHAM NG12 5GG (Tel: 0115 936 3100)

Charting Head of Aeronautical Charts and Graphic Arts Section, Civil Aviation Authority,
CAA House, 45-59 Kingsway, LONDON WC2B 6TE (Tel: 020 7832 5563/5566)

For guidance on Crown copyright matters generally contact:

The Copyright Office, Her Majesty’s Stationery Office, St Clements House, 2-16 Colegate, NORWICH NR3 1BQ (Tel: 01603 621 0000)

Remember also that typefaces and typographical arrangement (ie, the design, layout and typeface of a page) are protected by copyright and that whilst use of a typeface in the ordinary course of typing, printing, etc, is not an infringement of copyright, reproducing a photograph of a font, or a `typographical arrangement’ without the consent of the copyright owner is, unless such use is in the context of ‘fair dealing’ or ‘fair practice’.

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