Photographs and Copyright

Bredenkamp IP Blog

A photograph enjoys copyright protection for a period of 50 years.  The 50-year period runs from the end of the year in which the work was made available to the public with the consent of the owner of the copyright, or 50 years from the date on which the work was first published, whichever term is longer.  If the work was neither made available to the public nor published, the duration of copyright is 50 years from the date on which the work was made.

Where I take my camera and independently shoot photos, without anyone directing me, or without anyone having contracted me to take photos for payment, I am the author of the photographs as well the owner of the copyright in the photographs.

Note that the author of a photograph is the person who is responsible for the composition of the photograph.  In other words, it is not necessarily the person who aims, focusses, and presses or clicks the shutter button!  If I hire a photographer and I am responsible for arranging the order of players of my rugby team or directing the bride and groom at a wedding to strike poses, I am probably the one responsible for the composition of the photograph, and thus the author.  This will especially be true where I also instruct the photographer on how to take the photo, from which angle, close-up etc.. This can of course become a point of contention.

The author of a photograph is also not necessarily the owner of the copyright therein.  For example, where I hire a photographer for a task such as shooting wildlife photos for my magazine or for taking photos at a wedding and I agree to pay the photographer for such task, the photographer will be the author of the photos (if he or she is responsible for the composition of the photographs) but not the owner the copyright in the photos.  I will be the owner.  But what if payment is never made?

We suggest that photographers and their clients/employers enter into agreements to avoid disputes.  These can range from assignment of copyright (which must be in writing to be valid) to licences.  Assignments can be made subject to payment of the agreed fee.  Licenses can be exclusive, non-exclusive, or sole.  Note that exclusive licenses must be in writing to be valid.  A license can limit the use of photographs, such as, once-off in a magazine or on a website or restricted to a certain geographical area (a country) or industry (e.g., only for art exhibitions, advertisements etc..).   There are many options, and we suggest that you contact us for further advice.  Assignment and license agreements need not be complicated and are inexpensive considering possible future headaches and costs if proper agreements are not entered into!

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