So lets start with the basics. When does the photographer own the image?

Contrary to popular opinion, the photographer does not own the copyright under all circumstances. South African copyright laws is slightly different than US or European laws in this regard.

Essentially, it is good to remember that if you, as a photographer or artist, was commissioned to do a shoot, then all copyright subsists with the Person or Entity that commissioned the shoot. UNLESS OTHERWISE STATED BY WRITTEN AGREEMENTS.

The section of the copyright act that deals with this is The Copyright Act, no 98 of 1978) section 21.(1) which states:

 21. (1)

(a) Subject to the provisions of this section, the ownership of any copyright conferred by section 3 or 4 on any work shall vest in the author or, in the case of a work of joint authorship, in the co-authors of the work.

 

(b) Where a literary or artistic work is made by an author in the course of his employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship, and is so made for the purpose of publication in a newspaper, magazine or similar periodical, the said proprietor shall be the owner of the copyright in the work in so far as the copyright relates to publication of the work in any newspaper, magazine or similar periodical or to reproduction of the work for the purpose of its being so published, but in all other respects the author shall be the owner of any copyright subsisting in the work by virtue of section 3 or 4.

(c) Where a person commissions the taking of a photograph, the painting or drawing of a portrait, the making of a gravure, the making of a cinematograph film or the making of a sound recording and pays or agrees to pay for it in money or money’s worth, and the work is made in pursuance of that commission, such person shall, subject to the provisions of paragraph (b), be the owner of any
copyright subsisting therein by virtue of section 3 or 4.

(d) Where in a case not falling within either paragraph (b) or (c) a work is made in the course of the author’s employment by another person under a contract of service or apprenticeship, that other person shall be the owner of any copyright subsisting in the work by virtue of section 3 or 4.

(e) Paragraphs (b), (c) and (d) shall in any particular case have effect subject to any agreement excluding the operation thereof and subject to the provisions of section 20.

Lets break this down. Most people think they own the copyright because of subsection (a) which says that if no other people or entities are involved then the copyright belongs to you… but it’s essential that you read further…

Subsection (b) states this quite clearly. If you take/create images while in the employ of a publication (that also includes web) then copyright of those works BELONG TO YOUR EMPLOYER. Unless your contract states that Copyright for all images you take/create belongs to you and is licensed to the publication in question for a certain period or usage.

There is a misconception that this only pertains to images taken with equipment that belongs to the publication, but our South African Law does not give this exclusion. There may be a grey area though.

If as a photojournalist you are requested to cover the Presidential inauguration, then any images surrounding the event, the ceremony, peoples reaction, location and environment, etc belongs to the publication… whether snapped with their D3x or your mobile phone.

… and again,  “Unless otherwise agreed to in writing” (seems to be the theme of this article!)

There is more leeway in tighter worded assignments. If the assignment was to shoot a portrait of a person, then only the portraits are deemed to belong to the publication, shots of the building where the shoot is taking place, or a nice sunset on the way to the shoot (or an accident/other traumatic or newsworthy event) may in fact belong to you as the photographer… even if shot with company equipment. (Take note though that most employment contracts prohibit you from using “company resources” to earn an income from other sources than said company)

Subsection (c) deals with so-called “Commissioned Work”. A good example of this will be Weddings or family portraits, etc. and here is one where many fail. The Act very clearly states that if you are commissioned to create an image… the copyright belong to the person or entity which commissioned you. Whether they paid you or not at the end of the day… The Law sees they payment as a separate issue from copyright ownership.

Why is this such a big issue? If we look at the typical scenario, then the actual money is made by the studio on re-prints and enlargements done after the original orders for images were done. Unless you have a contract that states the copyright resides with the photographer, the clients are entitled to all the images taken on the day, edited or unedited. and extra print work and editing can be done by anybody the client feels will do a good job.

This is bad for the photographer in two instances. Future income is essentially zero, and quality control over the images is relinquished. That means, anybody that does a terrible job on the re-prints or editing will reflect on you as a photographer, because people will not asked who did the terrible prints, but rather who was the photographer.

Make sure your contracts state that you as a photographer retain all copyrights. It’s not that you are trying to take your clients for a ride, it’s a simple matter that your Quality Control is a personal matter that reflects directly on your business (and therefore future business) and you will take better care of it than another arbitrary 1-hour photo lab.

Essentially, it comes down to the fact that in almost all commercial ventures, Copyright of your images automatically revert to the business entity or person that requested that you take the image UNLESS your have a contract that states differently.

For this reason, organizations like the C21 Association exist (South African Photographers Resource on Copyright Law and Industry Practice ) To try and change this act to benefit the artist, not the other way round.

The other side of this question is: Can I download an image from the internet, re-work it completely and “make” a new artwork to which the artist then “owns” the copyright?

Essentially, the answer is No. Inside South Africa, the Copyright Acts protect owners of assigned copyright quite well. You can pursue illegal usage of your imaging in a court. How much you will get  out of it is another matter altogether, and my personal opinion is to keep the legals out of it… I can guarantee you they will make more money out of it, an not necessarily from the infringing party!


Ok… but what if it’s a matter that is a little bit less nefarious? Lets take the following example:

Flash TattooYou shoot a model for a commercial venture (lets say “stock imaging” to make it easier) Everything is in place and all contracts are signed.

-You have removed paintings from the walls of your location as to not accidentally infringe on the copyright of the artists.

– Your models have all signed release ensuring no copyright or usage disputes on the images

– You have a property release for the location you are shooting at that allows you to shoot for commercial purposes.

The model arrives, gets into her bikini for the shoot next to the swimming pool, and sports a big tattoo on her lower back that you did not know about… is this an issue?

Well… that depends…. on quite a few questions. Tattoos, just like oil-paintings, photography and graffiti is also artwork. The questions will come down on who designed the tattoo, who made the tattoo and who commissioned the tattoo’s design and implementation.

Firstly, if it’s “flash” (of the shelf designs) then there will be no problems. your problems come in with custom work. Strangely though, the very Copyright Act that treats photographers so unfairly is your best friend and ally in this instance. If the model “commissioned” the design, and “commissioned” the implementation of the tattoo, then under the current copyright act, she is the copyright holder, and barring any other contracts between her and the artists, can give a property release allowing the visible use of the tattoo in the images.

If, however, the design was done by a tattoo artist, seen by the model and requested to be applied to her body, Then the design was only “licensed” to the model, the original artwork’s copyright still remains with the artist. In this case you would need a separate property release to use the Tattoo in commercial images from the tattoo design artist.

Lets make it a bit more complicated. A Tattoo artist sees the model, and is inspired. He contacts his friend the tattoo designer, and says he found the perfect “canvas” for his latest design. They contact the model and offer to do the tattoo for her.

In this case (and it happens more often than you think!) you as a photographer would be required to get a property release from the tattoo designer, as well as a property release from the tattoo artist that applied the tattoo in the end (there would be shared copyright or co-authorship in this case).

The above is only relevant in South African Copyright Law as US and EU Law automatically assigns the copyright to the artist, NOT the person commissioning the artwork. The last Tattoo scenario is more or less the standard practice, not the extreme situation outside South African borders.

In the end there are many scenarios and many possibilities where copyright infringement can take place accidently or simply because of ignorance. It definitely pays to know your rights, and possible problems that may arise because others do not know what is allowed and what is not.
 

For more comments about this article, please visit the forum discussion about it.

 


 by Sean Nel
Sean Nel
 

Image: Tattoo in girl’s Back – Copyright Sean Nel, Shoots Imaging

 

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