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ARTICLE PROVIDED BY - THE BRITISH INSTITUTE OF PROFESSIONAL PHOTOGRAPHY

Knowing the legal position on how and when images can be used is essential for both professional photographers and those engaging their services.  When you commission a professional photographer to take some pictures you are entering a legally binding contract, with rights and responsibilities on both sides. One important but often misunderstood aspect of this contract concerns copyright of the images made. Many clients seem to be under the impression that all rights to the image belong to them but this is no longer the case, and hasn't been for many years.

In fact the law on copyright changed fundamentally with the passing of the 1988 Copyright, Designs & Patents Act.   Before then it was the person or company who commissioned the photography who owned the copyright. The photographer had no enduring rights to his own work.  The 1988 Act reversed the situation granting photographers the same rights as had long been enjoyed by authors, painters and other creative individuals. The copyright in the photograph now belongs to the person who took it - the only exception being employed photographers, where it is his/her employer who owns the copyright unless they have a contractual agreement to the contrary.

Copyright lasts for 70 years after the end of the year in which the author dies, and offers protection against unauthorised reproduction of the photographs and entitles the owner to economic benefit from it.  As well as these legal rights, the photographer also enjoys certain moral rights, which include the right not to have it falsely attributed, and the right to not have the work subjected to derogatory treatment. What all this means in practice is that clients may only use the photographs taken by a professional photographer in ways that have been agreed at the time they were commissioned. If further uses are later required, because the pictures have been so successful, then permission must be sought from the copyright holder an additional fee agreed.

For this reason it is essential that clients specify the uses to which images will be used -- preferably in writing -- when briefing the photographer and requesting a quotation. This agreement them forms part of the contract. It should cover how the work will be used, where (geographically) it will be used and for how long it will be used.  Although these issues have always been important, the development of new equipment such as colour photocopiers and desktop scanners, capable of reproducing images inexpensively and altering them out of all recognition, make these now crucial matters for both clients and photographers.

The internet too, raises further questions as once images are placed on a website they can be downloaded at will by anyone who visits it.

Copyright can be assigned to another person or company, but only if the photographer agrees. Assignment of copyright should normally be in writing, although an oral agreement could also be considered binding. Moral rights though, remain with the author no matter what happens to the copyright.
With simple images that are unlikely to have no wider commercial value, such as a pack-shot of a recognisable product, some photographers will be happy to assign copyright to their client. But where the picture is more creative, or has further economic potential -- perhaps as a library stock shot -- then it is essential that copyright remain with the photographer.

A 'Win-Win' solution would be for the client to be granted exclusive rights for an agreed period of time.

Assigning only those rights required by the client may allow the photographer to offer a more competitive day- or shot-rate than if all imaginable usage rights were granted.  It should be understood that, while the client who commissioned the work may hold onto it, the photographer, being the copyright owner, has a clear right of access to the material. Once the licensed period has expired, the photographer has the right to have the originals returned in good condition.
At the end of the day, it is in the interests of all parties to know what is being agreed, so there is no unnecessary bad feeling at a later stage -- and clients must be prepared to act honestly and recognise the right of photographers to copyright in their work.

Steve Bavister, Editor, The Photographer Magazine