Photographers own the copyright in their photographs if the photos are original, which is determined by the photographer's creative choices in areas like posing, lighting, and camera angles. Copyright automatically belongs to the photographer as the creator but can be assigned through written contracts. Photographers' rights include control over the photo's reproduction and distribution, as well as attribution and integrity rights. While some limited uses like criticism are allowed without permission, photographers worry that orphan works legislation could undermine their control over uncredited copying of their photos.

1. Photographers and Copyright
Lionel Bently

2. Overview
• When are photographs protected by
copyright?
• Who Owns copyright?
• What Rights Does Copyright Confer?
(Economic Rights, Moral Rights)
• When Is Permission Unnecessary?
• How is Copyright Enforced?
• What are Orphan Works? Why are
Photographers Worried about OW legislation?

3. Photographs as Works
• Copyright subsists in original literary, dramatic,
musical and artistic works (etc).
• “artistic work” means—a graphic work,
photograph, sculpture or collage, irrespective
of artistic quality....
• “photograph” means a recording of light or
other radiation on any medium on which an
image is produced or from which an image
may by any means be produced, and which is
not part of a film.

4. When Does Copyright Subsist In
Photographs?
• Term Directive, Article 6:
• ‘Photographs which are original in the sense
that they are the author’s own intellectual
creation shall be protected in accordance
with Article 1. No other criteria shall be
applied to determine their eligibility for
protection. Member States may provide for
the protection of other photographs.’

5. Case C-145/10 Eva Maria Painer v
Standard VerlagsGmbH
• EP photographer eg in
nurdery
• NK abducted 1998.
• When escaped in 2006,
photograph was published
without
permission/attribution and a
photo-fit was made to show
her as she might look in 2006
• Was the photo protected by
copyright?

6. Case C-145/10: Is a Portrait Photograph
Original?
[91] In the preparation phase, the photographer can choose the
background, the subject’s pose and the lighting. When taking a
portrait photograph, he can choose the framing, the angle of view and
the atmosphere created. Finally, when selecting the snapshot, the
photographer may choose from a variety of developing techniques
the one he wishes to adopt or, where appropriate, use computer
software.
[92] By making those various choices, the author of a portrait
photograph can stamp the work created with his ‘personal touch’.
[93] Consequently, as regards a portrait photograph, the freedom
available to the author to exercise his creative abilities will not
necessarily be minor or even non-existent.
[94] In view of the foregoing, a portrait photograph can, ...be protected
by copyright if, which it is for the national court to determine in each
case, such photograph is an intellectual creation of the author
reflecting his personality and expressing his free and creative choices
in the production of that photograph.

7. What about other non-original photographs?
• Member States could protect
• The UK probably used to do so: ‘originality’
had a different meaning – the investment of
labour skill and judgment. The High Court held
a photograph of three dimensional objects to
be ‘original’ in that sense: Antiques Portfolio v
Rodney Fitch
• It is unclear, but probably the UK no longer
does so.

8. Who Owns Copyright?
• Copyright Designs and Patents Act 1988, s 9:
‘the author’
• The author= the creator. In the case of the
photographer the person who contributes
what is ‘original’ – chooses the background,
pose, angle, lighting etc
• One statutory exception: CDPA, s 11.
Photographs created (a) by employees (b) in
the course of employment.

9. What About Commissioned
Photographs?
• In theory, copyright belongs to photographer
unless there is a written assignment.
• But the Courts sometimes infer an intention
to transfer copyright if the commission is for
value and the commissioner needs the
exclusivity to achieve its business aims.

10. How Is An Assignment of Copyright
Made?
• In other cases, CDPA requires “writing signed
by or on behalf of the assignor.”
• Not achieved by merely selling the work.
• But it can be sufficient if this is an invoice or
receipt (Savoury v World of Golf [1914])
• And can be for “future copyright”
• No clear basis for preventing photographers
from assigning all rights

11. What Are “Creative Commons” Licences?
• There are different versions:
• CC BY-NC-ND Attribution Non-commercial No
Derivatives. (The most popular licence.)
• CC-BY-ND Attribution-No Derivatives
• CC BY-NC-SA Attribution Non-commercial Share-
Alike
• CC-BY-NC Attribution Non-commercial
• CC-BY-SA – Attribution Share-Alike (Wikipedia)
• CC-BY Attribution

12. What Rights Does Copyright Confer?
• ‘Economic rights’ –
- To reproduce;
- To distribute;
- To communicate to the public (Broadcast, make
available (on the Internet) etc)
• Directly or Indirectly
• ‘Any original Part’

13. Temple Island Collection v New English
Teas [2012] EWPCC 1
Claimant’s work (created by Defendant’s took 3 photos of
Fielder in 2005) and used on Parliament and one of a bus on
mugs, stationery, key fobs the Strand. Blended.

14. Temple Island Collection v New English
Teas [2012] EWPCC 1
“I have decided that the defendants' work does reproduce a
substantial part of the claimant's artistic work. In the end the
issue turns on a qualitative assessment of the reproduced
elements. The elements which have been reproduced are a
substantial part of the claimant's work because, despite the
absence of some important compositional elements, they still
include the key combination of what I have called the visual
contrast features with the basic composition of the scene itself.
It is that combination which makes Mr Fielder's image visually
interesting. It is not just another photograph of clichéd London
icons.”

15. Temple Island Collection v New English
Teas [2012] EWPCC 1, para 62
“ I sympathise with Mr Houghton in his wish to use an image of
London landmarks. He is free to do so. There are entirely
independent images of the same landmarks available to be
used which predate publication of Mr Fielder's picture. .... Mr
Houghton could have simply instructed an independent
photographer to go to Westminster and take a picture which
includes at least a London bus, Big Ben and the Houses of
Parliament. Whatever image was produced could then have
been used on the tins of tea. Such an image would not infringe.
It may or may not have the same appealing qualities as the
claimant's image. Even if it did they would be the result of
independent skill and labour employed by the independent
photographer. Again however that is not what happened.”

16. What Acts Are Permitted Even
Without Consent?
• Fair Dealing for Criticism or Review of a work.
The photograph must have been made
available.
• Authorship must be acknowledged.
• It can be fair to use the whole of a photograph
eg for a short time in a film or broadcast:
Fraser-Woodward v BBC [2005]
• Fair Dealing for Reporting Current Events –
Does not apply in relation to photographs

17. What Acts Are Permitted Even Without
Consent?
• Photographers rely on exceptions:
• (i) incidental inclusion: s 31 (“Copyright in a work
is not infringed by its incidental inclusion in an
artistic work...”)
• (ii) designed articles that are more than 25 years
old (s 52, but about to be repealed)
• (iii) artistic works ‘permanently situated in a
public place or in premises open to the public’
• ECtHR (5th section), 10 January 2013, Ashby
Donald and others v. France, App. 36769/08

18. Moral Rights
• Photographers gain two ‘moral rights’ – which
are non-assignable.
• Right of attribution – but must be asserted
• Right of integrity. Infringed by modifications
which are ‘prejudicial to the honour or
reputation of the author.’

19. How is Copyright Enforced?
• Through courts. Expensive. And risky. “Loser
pays” winners costs.
• Though 2010 introduced “costs caps” at the
Patents County Court – so maximum would be
£50,000 (and structured so that would be
lower in most copyright cases).
• Note: Oct 2012. Small claims (under £5000)
track on Patents County Court.
• Note also ‘notice and take down’ (eg Flickr);
criminal liability

20. What Are Orphan Works And why are
Photographers Worried about OW
Legislation?
• Orphan Works are works where the copyright
owner cannot be identified or located.
• On the whole, Directive 2012/28/EU does not
apply to photographs unless “embedded” in
works published in the form of books, journals,
newspapers, magazines or other writings
• But clause 69 Enterprise and Regulatory reform
Bill would introduce a more open-ended power
(s 116A) and could cover photographs