KNOW YOUR [and other’s] PHOTOGRAPHY COPYRIGHTS
By Loftus Viljoen*
More
and more photographers are being sued worldwide for copyright infringements,
privacy intrusions and exploitation of models and other photography related
issues. I have studied the South African Copyright Act 1978, the Berne
Convention, the SA Bill of Rights and other legislation and court cases and it
is my legal and professional opinion that many of our Standard Model Release
Forms does not comply with the Consumer Protection Act and labour legislation
and could be regarded as exploitation and unfair/unjust business practices. I
have consequently re-drafted my Standard Model Release Forms to comply and they
are available for copyright licensing.
Everyday
thousands of images posted on the internet and social media are stolen and
passed off by criminals as their own work and thereby depriving the legal
author/owner of his intellectual property rights. It is even worse in the case
of music and computer programmes, but in our scenario we are looking at
photography and our rights relating to that.
What is Copyright and what is
the fuss about copyright?
Copyright
is created by statue and governed by the Copyright Act, no 98 of 1978, as
amended and that Act specifically states that no copyright will subsist other
than by virtue of that Act or some enactment in that behalf.
The
Copyright Act of 1978 does not contain a specific or comprehensive definition
of the term “copyright” but merely states that it means copyright under the
Act. However when you examine the Act it becomes clear that “Copyright” vests as a clear and conclusive right to do
certain things or actions as listed in the various sections of the Act. In
general terms copyright can be described as those rights vested in the
qualified author of an original work as recognised by the Law and which gives
him the right to take legal or appropriate action to prevent the unauthorised
copying of his work.
In
South Africa there is no system, unlike other intellectual property rights, where
copyright can be registered [apart from cinematograph films] - so in order to enjoy copyright protection by law for a work certain requirements are to
be met:
1.
The first requirement is
that the work must be original, which means the “author” must have used skill
and labour in the creation of his original work – it is not a requirement that
the works had to be novel or unique.
2.
The work has to be
reduced to some sort of physical or material form – so if you have an idea and
failed to reduce it to writing or produce it into something physical you will
have no copyright protection.
3.
The “author” should be a
qualified person at the time of creation of the work.
a.
What does “qualified
person” means? It simply means a person who is a citizen [this is very
important] and is domiciled in South Africa or in one of the Berne Convention
countries and the same applies to juristic persons. In terms of the definition of “author” in
photographs the Act says it means the person responsible for the composition of the
photograph.
4.
And, in terms of Section
3 of the Act – the work must, in case of a literary, musical or artistic work,
a sound recording, a cinematograph film or a published edition, first have been
published/produced in South Africa or a Berne Convention country or digitally
transmitted to a satellite from a place inside South Africa.
There
are a number of works that are eligible for copyright and they include literary
works [for example drafted written contracts/model and building releases and other legal documents by lawyers] as well
as “artistic works” and in this definition it includes photographs, works of
architecture, works of artistic craftsmanship and craftsmanship of a technical
nature.
The problem
that the photographer sits with is that the Law regards him [or her] as the
“author” of the photo. Ignorance of the Law is no excuse or a defense that you
“did not know” is no excuse when you are prosecuted or sued for copyright
infringements, because as the “author” of a photograph you are responsible for the composition of the photograph
you have taken. You are also the creator
of the artistic work [you may have used a special lighting effect, or pose,
special filters etc in the photograph] and that is the final “edited” product.
As the responsible
person you will know that the subjects that you are photographing may itself be
copyrighted objects [for example sculptures, paintings, works of art,
buildings, registered designs & patents, branded articles, fashion articles
etc]. The Law places a responsibility and duty on you, the photographer, to
make sure that by taking the photo that you do not infringe on the rights of
others. Are you going to include those
objects as part of your photo? Are you going to take the risk to take such
photos even though you may not be the legal copyright owner of the photograph?
In this regard I would like to give an
example: I have seen a recent photo of a portrait of an older lady drinking
from a can of Coke Cola. The photographer decided to tint the colour of the
photo and then can of Coke became yellowish in colour. This photo was published
on the internet. Coke Cola is a registered trademark [which includes copyright]
and a well-known international soft drink brand – do you think that Coke Cola
will allow a decimation or distortion of their brand? I do not think so. Are you going to take on large international
companies in Court as a result of your “unique look” by distorting of
decimating their branded and/or copyrighted objects? As a professional
photographer you have a duty to advise your client of such risks and obtain
either the necessary permissions or get proper indemnities from your clients.
The safest option is to avoid these risks by taking careful consideration
as to what you include in your photo or what background you are going to use.
As a professional photographer you will know that copyright, in
general terms, is valid for 50 years.
What are literary or artistic
works?
Article
2 of the Berne Convention for the Protection of Literary and Artistic Works of
9 September 1886 [Brussels text of 1948 accepted and confirmed as signatory to
by the Government of South Africa] describes it as follows:
(1) The expression “literary and artistic works”
shall include every production in the literary, scientific and artistic domain,
whatever may be the mode or form of its expression, such as books, pamphlets
and other writings; lectures, addresses, sermons and other works of the same
nature; dramatic or dramatico-musical works; choreographic works and
entertainments in dumb show; musical compositions with or without words;
cinematographic works to which are assimilated works expressed by a process
analogous to cinematography; works of drawing, painting, architecture,
sculpture, engraving and lithography; photographic works to which are
assimilated works expressed by a process analogous to photography; works of
applied art; illustrations, maps, plans, sketches and three-dimensional works
relative to geography, topography, architecture or science.
Who is the
Copyright owner?
The author and/or creator of the work shall in most cases be
the first owner of copyright however there are a couple of exceptions to this
rule and for photography purposes it will mean the person who commissions or
employs you for the taking of the photograph and pays, or agrees to pay for it
in money or money’s worth, that person shall be the copyright owner.
For photographers it means that their clients are the owner
of the copyright of the photos, unless the photographer has a legal and valid contract
in writing whereby the rights [including copyright] accruing to the customer is
ceded or transferred or assigned to the photographer.
What happens when the photo that you have taken [and for which you are the “author” as defined by the
Act] but of which you are not the Copyright owner is distorted, mutilated or
transformed in such a manner that it would be prejudicial to the honour and
reputation of the author? Well in that
case section 20 of the Act deals will moral rights and for the purpose of
protecting your rights you will be deemed to be the owner of the copyright in
question and will have the remedies available in Chapter 2 of the Act to you. This right is also called the author’s “residuary
right” or “moral right”
Photographers often make the mistake by “reserving copyright”
and then claim they have full copyright of the photos they have taken. By Law you
cannot have more rights than the original rights of the “owner” and by making a
clause in your Photography contract saying “copyright is reserved” is not going
to help you and is meaningless.
There are two ways how the photographer [of that matter anyone else] can get the
copyright from his client [the copyright
owner]
(1) by way of assignment, testamentary
disposition or by disposition by law, but this can only be done if it is in
writing and
(2) by copyright licensing.
And this be done in the form of an agreement stating the terms
and conditions applicable [Sect 22 of the Act].
Once you have established copyright ownership you may add the
copyright sign © [alt 0169 on your pc keyboard – I don’t know the keys for Mac-users]
to your photos with your name. It will also be prudent to add your copyright
details to the meta-data of your photo. Although Facebook removes most of your
meta data I have found that they retain my copyright data when I post my photos
to them.
Now what about the contents of your photograph?
So far we have established that you
are the author of the photograph and will be the first copyright holder, unless
your photo was commissioned by a client/employer and you did not get a license or assignment
document from them, in which case the
copyright belongs to them.
Being the copyright owner does not mean you are
also the copyright holder of the contents. The “author” of the photo is the
photographer which by law means you are responsible for the composition of that photo.
Composition means what objects/subjects you are going to assimilate and arrange
for the photo using your skills, labour and time and how the end product will
look like. In a recent court case in the UK, known as the
London Bus Case, one company commissioned a photographer to take a series of B&W photos of the London red bus
against the backdrop of the houses of parliament and the London Bridge. Only
the red colour of the bus had to be retained in the photo. This photo was used
for advertisement of the company’s products. It was a successful ad campaign. Not
long thereafter another company instructed its photographer to take a similar
photo of the red bus also in B&W retaining the red colour and with the same
background albeit a different angle. The UK court found that “composition” can
be copyright protected.
Let’s get tricky by way of example:
you are instructed to take a photo of a model, she’s got a tattoo of “the
Golden Dragon” on her body which comes from a movie with the exact same title,
posing on a sculpture recently done by a well-known sculptor, sipping from a
Coke Cola can and in her other hand she sprays a perfume mist from a bottle of
Chanel No 5 to her neck against the backdrop of a private mansion designed by a
famous architect? And to make things messier:
during the post production editing you decide to change the tint and colouring
of the photo and now your model looks differently, the can of Coke is now
yellowish and the contents of the bottle Chanel no 5 is now, say for argument
sake , blue? How many copyright [which
include design, trademark or patents] infringements did you commit or exposed
yourself to? Unless you have a model
release, a license or permission to copy the “Golden Dragon” tattoo, an art
lease, a release from Coke Cola and
Chanel No 5 to change their trademarked colours and brand [and the chances of
getting this are less than zero] and a building release [or permission to
photograph on private property] you may
find yourself in the middle of a copyright infringement claim.
The point that I am making that you
as photographer is in the first instance responsible for the composition and
that you should take extra care and diligence when you decide to ad or include whatever
elements to your photo. You will in most
cases be sued or prosecuted not on the photo itself but what is depicted in the
photo.
Read my blog on the Obama Hope Poster and the copyright infringements
there:
HOW AM I
GOING TO PROTECT MY COPYRIGHT IN MY PHOTOS?
You have done whatever was necessary to have the copyright of
your photos and can claim to be the lawful copyright owner and you post your
photo to the social media or internet or a magazine and find that somebody else
has stolen your photo and pass it off as his own – what are you going to do?
The Copyright Act states that copyright will be infringed by
any person, not being the owner of the copyright, who, without the licence of
such owner, does or causes any other person to do, in the Republic, any act
which the owner has the exclusive right to do or to authorize.
This is the position in South Africa, but posting it on
social media means it will go global and you may ask what are my rights in such
case? That is where the international copyright treaties come into play and the
most important one of them is the Berne Convention of 1886 which gives you
international copyright protection on
the same basis as in South Africa.
In a case of an infringement you need to give a notice to the
infringer to cease and desist [it is also called a “KILL NOTICE”] – here is an
example of how I did it:
Ten years ago I set up a business called Ngonyama Camper Rentals
whose activities included the rental of off-road caravans. At that stage there
was no-one in South Africa that offered such a service. A new business concept
had to be developed with a set of legal documents comprising of contracts,
booking forms, inventories and more and a website where these documents were
posted which made it easy for customers to complete – all these documents were
copyright protected. This business was
well received in the printed media. Scarcely a year after we have started I
received a call from one of my journalist friends telling me that a guy in Cape
Town has copied my business concept and documents. After viewing copies of the
“infringer’s” documents we saw that it was my exact same documents that were
copied without permission and even the business concept was exactly the same. A
notice to cease and desist was sent to the infringer as well as a demand to
disclose and produce all his business books, records and documents so that we
could determine a claim of royalties/damages for copyright infringements. Within
a month the infringer closed business.
Here is another example:
in 2010 the Island of Haiti was struck with a severe earthquake and
devastation was everywhere. A local photographer and photo-journalist, Daniel
Morel, started taking the photos of the devastation and posted 13 of them on social media
[Twitter]. What then happened was that
somebody stole his photos from Twitter and posted it under his own name and
various news agencies simply took his photos which then were headline news
photos. By the time the Kill Notice were
issued these photos were all over the world. Litigation ensued in January 2013 an US judge found in favour of the
photographer on copyright protection and that the T&C’s of Twitter does not
allow any third parties to use an Twitter account holder [User] photos without consent or permission. For
more on this case read http://www.worldipreview.com/news/news-outlets-face-damages-for-twitter-images#.UQPc3IAh8T4.facebook
In the light of this case Facebook, Twitter and other social
media will probably sharpen up their T&C’s to protect their Users’
copyright interests. Google is already
busy with this on their search engines –
for more info read this http://googlepublicpolicy.blogspot.com/2010/12/making-copyright-work-better-online.html
and http://www.csmonitor.com/Innovation/Horizons/2012/0525/Google-releases-data-on-piracy-takes-copyright-infringement-pretty-seriously
In conclusion:
The above is an explanation of the basic principles involved
in the South African copyright law in respect of photos – there are some
exclusions so if you are unsure if you are infringing someone copyright consult
your lawyer.
My last piece of advice to photographers is make sure of what
you include in your photos and take care because I would rather see you on location
than in court.
Loftus ©2013
*Loftus is a retired attorney, photographer, writer, freelance
journalist and businessman from Pretoria with more than 200 published photo
& travel articles.
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