AN ASIDE FOR PHOTOGRAPHERS

Disclaimer: The aim of this article is information and enlightenment; please consult a solicitor for individual professional advice.

AN ASIDE FOR PHOTOGRAPHERS

Oh, I haven’t forgotten that this is an entertainment-related blog. I happen to find photographs enlightening and entertaining (not to mention awe-inspiring), so, I think we’re still on point. By the way, back up: it’s an aside. Here are some basic pointers (excuse the pun) for those interested in photography.

First off, you must know that your photograph is your property, just as much as your car, your phone, or your clothes. It is called INTELLECTUAL PROPERTY (IP) because the photograph itself, as opposed to the material it is fixed on, is intangible. That does not detract the fact that it is still property worthy of rights and protection.

• Suitability for Protection. Basically, like most other intellectual properties, a photograph is eligible for copyright protection when it is original and fixed on some material or medium on which is can be perceived (or well, seen). It’s irrelevant that the quality is below par, or that you’re an amateur.

• Nature of Protection. The protection is a negative one. It prohibits any other person from doing certain acts in relation to the photograph without the copyright owner’s permission. Such no-can-dos include reproduction, publishing, adaptation, distribution or further exploitation. Of course, they are certain exceptions to the rights of the copyright owner, but I did say we’re dealing with ‘the basics’.

• Ownership. The owner of copyright in the photograph is the person who took the photograph and not the person whose likeness or thing was photographed. It’s amazing how smart alecs say things like: “Mr. Santiago took a photograph of Miss Burrito. He had no right to do that. He’s infringing her copyright.”


Now, the first statement, well, it’s just a statement of facts. The second statement is arguable. It depends on the circumstances; Mr. Santiago may have had some kind of permission or some other legal defence. The third statement, definitely erroneous. Taking a person’s picture does not mean that the copyright of the person’s whose picture was taken was infringed. Some right may be infringed, maybe a privacy, publicity or brand right. But not copyright. The photographer is the copyright owner.


Having said that, I’ll point out that in some situations, the copyright may be not be owned by the person who took the photograph. In cases of employment (excluding employment in journalism), an employee who takes a photograph is the copyright owner, except there is an agreement transferring the copyright from the employee to the employer. Similarly, in commissioned works/works of hire, except there is an agreement transferring the copyright in the photograph(s) to the proprietor, the photographer remains the copyright owner.

• Length of protection. The protection does last forever, no sirree. It ends fifty years after the end of the year in which the work was first published or taken.

Well, I haven’t said much, but I hope something clicks. Ah, that pun thing again.


© 2011 Tinukemi Alabi
Comments/Questions: tinukemi@gmail.com