WHAT IS COPYRIGHT?

Copyright is a property right that authors (in this case photographers), in
general, have vested in work which they have created. It protects them against unauthorised usage of their work. It allows them to benefit from the economic value of their work.
It protects their work from certain derogatory treatment and it enables
them to be identified with their work. Since the 1988 Copyright Act, the photographer has been recognised and given legal status as ‘the author’ of their own work and first owners of copyright in it.

OWNERSHIP

The author of the work is the first owner of the copyright in it, hence the photographer has the first copyright in their work, whether commissioned or otherwise. Copyright may still be transferred to another party but only if the photographer agrees. An assignment of copyright is not effective unless it is in
writing and signed by the photographer.
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DURATION OF COPYRIGHT

The duration of the copyright in photographs taken since the 1st August 1989
is now the same as for all other artistic works. When the 1988 Act was published, this was 50 years from the end of the year in which the author dies.
However, on 1st January 1996, it was extended to 70 years to bring the UK in
line with other European countries.

MORAL RIGHTS

The 1988 Act introduced a series of ‘Moral Rights’. These are rights which
remain with the author irrespective of what happens to the copyright. They
cannot be transferred in the way that copyright can. The author can choose
to exert them, or give them up. In general, the moral rights remain with the photographer, or their heirs, for the duration of the copyright. These moral
rights are:

THE RIGHT TO BE IDENTIFIED AS AUTHOR.

The photographer has a legal right to have a reasonably prominent credit
whenever their work is published or exhibited. However, this is not an automatic right. Photographers must assert this right to a credit in writing.
This right does not apply to photographs taken for the purpose of reporting
current events or for publication in a newspaper, magazine or periodical.
However, it has always been trade practice, rather than a legal right, for credits to be given to the photographs in editorial contexts.

THE RIGHT TO OBJECT TO DEROGATORY TREATMENT

Photographers have the moral right to object to having their photographs
treated in a way which amounts to distortion or mutilation or is otherwise
damaging to the ‘honour or reputation’. This could include cropping, retouching, or assembling in a compilation, but only if it is damaging to the photographer. This is an automatic right and there is no requirement to assert it.

FALSE ATTRIBUTION OF WORK

This is the right of all photographers not to have work falsely attributed to them. This is an automatic right, which needs no assertion.

FAIR DEALING

There are a number of established ways in which copyright material is allowed
to be used without the need to obtain the copyright owner’s consent. These
are often called ‘Fair Dealing’ clauses, and include reasonable and fair use of
the work for the purpose of criticism, for private study or research, for education and examinations, and for the purposes of reporting the news.
Under the new law all these apply to photography, except news reporting.
There is no right to reproduce a copyright photograph without the permission
of the copyright owner for the purpose of reporting current events. This is specifically to protect the living of the news photographer or photojournalist.

INCIDENTAL INCLUSION

Copyright in a photograph is not now infringed when it is ‘incidentally’ included in another photograph, artistic work, film, television broadcast or cable programme. Equally, photographers are no longer in breach of copyright if they include other people’s copyright material in their work without permission, provided its inclusion is only ‘incidental’.

LICENCE TO USE PHOTOGRAPHS

The ownership of copyright remains with the author but the client is allowed
certain rights to reproduce the work. These rights are usually based on consideration of the purposes the client wants to use the work, the geographical area in which they want to use it, and the period of time they will have to exercise these rights. The license is priced accordingly. The license is granted upon full payment. The client will only be able to use the photographs for the purposes agreed to, within the agreed territories and time period. To extend the terms of the license the client will be required to pay additional negotiated fees.

REPRODUCTION RIGHTS

The right to reproduce photographs are called ‘reproduction rights’. A negotiated fee is payable for the client to be issued reproduction rights. This does not in any way involve the sale of copyright.

Practical results

What the legislation means in practical terms for photographers is that:

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 photographer dies, and offers protection against unauthorised reproduction of the photographs and entitles the owner to economic benefit from it.

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.
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 and 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.

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.