What is Copyright ?
Copyright is part of wider group of rights, called Intellectual Property rights, which includes Moral Rights, Trademarks,
Patents and Designs.
Intellectual properties are the material products of intellectual activity and are regarded as 'property' rights
in that they carry ownership rights like a house or boat does. These rights may be bought or sold.
Copyright protections do not extend to ideas - only the material form that the idea is expressed in.
These rights are governed in South Africa by the Copyright Act 1978 with amendments.
Ownership of Copyright in a photograph gives the owner exclusive rights to or to authorise others to:
- [Sect 7(a)] Reproducing the work in any manner or form,
- [Sect 7(b)] Publishing the work if it was hitherto unpublished.
There is therefore a direct link between copyright ownership and the economic benefits resulting from such
ownership.
The World Intellectual Property Organisation (WIPO) has a more extensive list of what rights the
ownership of copyright protects:
- to produce copies or reproductions of the work and to sell those copies (including, typically, electronic copies),
- to import or export the work,
- to create derivative works (works that adapt the original work),
- to perform or display the work publicly,
- to sell or assign these rights to others.
Note that authorship and copyright are two very different concepts. Authorship rights are governed by [Sect 20]
(Moral Rights) whilst copyright ownership is governed by [Sect 21]. Being the creator (author) of a photograph
does not guarantee copyright ownership - see below.
International agreements such as the Universal Declaration of Human Rights and The Berne Convention add a
Human Rights dimension
to support and nurture the interests of the photographer by guaranteeing respect for their economic and moral rights.
South Africa has not yet incorporated this dimension into its laws.
What are Moral Rights ?
[Sect 20] allows photographers to:
- Claim authorship of a photograph,
- Object to any mutilation, distortion or modification of the work if it is prejudicial to his honour or reputation,
- These rights last for 50 years from the date of first publication or, if unpublished, from the end of the year the photograph was first taken.
The right to be identified as the creator of a photograph is known as the Attribution Right or Right of Paternity and, in practice,
would normally be understood as a by-line or credit.
The right to object to mutilations or distortions is known as the Integrity Right.
The Attribution Right is not automatic and must be asserted to be of any effect.
The Integrity Right is automatic but can be swept away by 'modifications absolutely necessary on technical grounds or for
the commercial exploitation of the work'.
What does our law say about copyright
The Copyright Law stipulates who has first ownership of photographs but also allows for this ownership to be
negotiated.
The key to understanding how this operates is to regard the Copyright Act as providing a default initial
ownership of copyright. These are :
- non-commissioned photographs are owned by the photographer [Sect 21(1)(a)],
- commissioned photographs are owned by the commissioner (client) [Sect 21)(1)(c)],
- employee photographers do not own copyright [Sect 21(1)(b)].
The Copyright Act allows for negotiation of these defaults [Sect 21(1)(e)] and
any agreement negotiated comes under contract law which then overides the Copyright Law.
A contract can therefore stipulate who owns copyright and can contradict the default ownership position.
It is important to understand that a contract takes precedence over the Copyright Act.
It is also possible to not own copyright but to restrict the use of pictures by the means of a contract. What is agreed
in the contract will override the unlimited use that the ownership of copyright allows.In this way
the amounts earned from the picture use can be directly related to their value to a client.
Agreements detailing the use of pictures are known as Usage Agreements which are looked at in more detail
under the Usage section.
Usage agreements allow photographers to benefit from the true commercial value of their
work.
Contracts can be either verbal or written. A written agreement, signed by both parties, is obviously
preferable and must be completed before any work is started. It is too late and of NO LEGAL EFFECT if
agreements are added to the invoice as the first evidence of their existence.
Many commissioning clients will not agree to the photographer owning copyright. In these cases, unless the
photographer understands how to limit the use of the photographs, the work may be be used in ways never
originally intended and for which he will certainly not be paid.
COMMENT
To often photographers neglect the business aspect of their dealings with clients. Many, only too pleased
to get the work, fail to get agreements in place and then complain when work is exploited over and above
what was expected.
There are unscrupulous clients who can and will do this. There are others who present their own contracts
and, again, photographers sign them to get the work. All contracts are negotiable to a greater or lesser
extent and it is encumbent on the photographer to lay his wishes on the table and negotiate a deal that
works for both parties.
When does Sect 21(1)(c) apply ?
[Sect 21(1)(c)] of the Copyright Act applies whenever a client commissions a photographer to take pictures and
'pays or agrees to pay in money or money's worth'. This part of the act allows clients to take over the copyright ownership of pictures by default.
This legacy of our apartheid past betrays the past unfair influence of big business interests in the law making process.
it is interesting to note that the original
1978 Copyright Act gave commissioned photographers copyright but this was subsequently and
quietly changed under Amendment No 56 of the Copyright Amendment Act 1980. The then Institute of Photographers was
pointedly excluded from any official discussions relating to this amendment and the photography industry has suffered the consequences since.
Nevertheless, this is the current position no matter how unfair or discriminatory it appears in a contemporary light.
It should be noted that Sect 21(1)(c) only applies to 5 categories of creators. Authors, musicians, sculptors
and most other creatives are not discriminated against by this section of the act.
Ownership of copyright allows clients to maximise their use of photographs and, by extension, economic benefits,
including library use and
syndication here and (contentiously) abroad without photographers sharing in these economic benefits.
Photographers who understand contracts and usage may try to counter the provisions of Sect 21(1)(c) but
it is not an easy task.
How does the law define a photographer
The Copyright Act defines a photographer as 'the person responsible for the composition of a photograph'
The origin of this definition shows the grossly unfair influence of business interests. If the photographer was
not responsible for the composition of a shot then, by definition, then he/she cannot claim any of the protections
of the Copyright Act as he/she falls outside the definitions of authors.
Non of our research into foreign
photographer definitions produced a definition as biased and limiting as the one above. Neither the UK nor USA
copyright laws define a photographer.
Singapore defines a photographer as 'the person taking a picture' and one other source says 'One who practices,
or is skilled in, photography'. Photographers are often chosen for their style, lighting techniques and any of a
myriad of other qualities. That copyright ownership may be claimed by an art director who claims responsibility for composition and may not even be present on the shoot undermines the profession of photography.
What does Sect 21(1)(e) mean ?
This section of the act permits all of the stipulations regarding Moral Rights and Copyright
ownership to be changed by negotiation.
It is not necessary to have agreements in writing but, in the event of a future dispute, written agreements
are much harder to contend.
Agreements in writing must be concluded before any work starts.
Is the copyright law relevant ?
Depends. Passive photographers who rely on the copyright law to establish their rights are at a disadvantage.
Knowledgeable photographers who use their own contracts and negotiating skills to set limits on a clients' use
of pictures do not need to be overly concerned with Sect 20 & (21(1)(c). This ability to negotiate agreements which override
the law is allowed for under Sect 21(1)(e).
Are there any conflicts between SA Law and International Agreements ?
Yes:
- a) Berne Convention Article 9 says :
- '1) Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form.
- 2) It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.
South Africa acceded to the Berne Convention in 1928. Note that the Berne Convention does not refer to copyright but goes directly to the heart of the copyright ownership concept.
See Berne Convention document for an expansion of this argument
- b) Universal Declaration of Human Rights Article 27 says :
- (2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
South Africa's progressive and much admired constitution echos the sentiments contained in the UDHR document which, incidentally, is not a treaty but an aspirational document on Human Rights worldwide.
- WIPO 1996
- (4) Contracting Parties shall comply with Articles 1 to 21 and the Appendix of the Berne Convention.
- Secretarial statement:
The Secretariat recalls that, by virtue of the Berne Convention for the Protection of Literary and Artistic Works, works are protected without any formality in all the countries party to that Convention. This means that international copyright protection is automatic, it exists as soon as a work is created, and this principle applies in all the countries party to the Berne Convention Article 9.
Whilst South Africa is not yet a signatory to the WIPO 1996 agreement, the WIPO Secretariat has provided a useful insight into the international application of the Berne Convention.
- WTO Uruguay Round of Gatt, Annex 1c - Trade Related Agreement on Intellectual Property Rights (TRIPPS) 1994, Part 2 Sect 1
- 1. Members shall comply with Articles 1 through 21 of the Berne Convention (1971) and the Appendix thereto.
South Africa joined the WTO in 1994.
It is clear from the above that South Africa's international agreements puts copyright ownership in the
hands of the creating photographer when work is used outside South Africa whether it is seen by direct reference to
the Berne Convention Article 9 or by more sophisticated jurisdictions which stipulate photographers to be the first copyright owners.
The Copyright Act 1978 has yet to catch up on these international agreements and the conclusion has to be
drawn that the restrictive Sect 21(1)(c) clause only applies for work used within South Africa and that South African photographers
have the right to exploit and benefit economically for work used outside the country.
Photographers should be very aware of contracts which try to change this position by the inclusion of a cession or transfer
of "All Intellectual Rights" clause.
What about employed photographers ?
Employed photographers do not own the copyright on work done whilst employed by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship providing the work is intended for publication in the periodical concerned [Sect 21(1)(b)]. Employed photographers working on their own projects in the magazine, newspaper, or periodical industries own copyright. Photographers employed outside these industries own the copyright to their own work.
Ownership of Film ?
Ownership of the film materials and ownership of the copyright of the images on them are two
separate issues.
For this reason, it is unwise to let clients supply film as this clouds the problem of who gets to keep the film.
The images on the film represent the initial, original versions of work.
Negative film represents one stage in the process of the making of a picture. The final stage is usually a print or scan.
Negative film cannot be easily edited and therefore should never be handed over.
Transparencies should also be returned to the photographer but because they are the final stage in the process,
it may be more difficult to have them returned.
Handing over film carries several dangers :
- Loss of control over image selection
- Possibility that a client will choose an image that is not quite up to scratch
- Loss of images for portfolio use
- Possible loss of or damage to film whilst in clients hands
- Difficulty in proving authorship or copyright ownership in the absence of the original image
Copyright in the Digital Age ?
Images in a digital format, whether scans from film or scans from digital cameras,
can be replicated (copied) many times over and distributed with ease. If multiple copies exist,
it becomes a difficult task to prove authorship or originality in the case of a dispute.
A good strategy to combat this is to ensure that the IPTC fields referring to copyright and authorship, available in
JPG, TIF & PNG image formats,
are correctly filled in and that images are delivered on a closed CD or DVD. These images then represent
the originals and cannot be altered in any way. A second identical CD or DVD is kept with the photographer.
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Most good image editing softwares allow for IPTC editing and many will allow a batch process to do the job over many images.