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Photography Rights

There are generally four types of rights connected with a photograph - copyright and associated rights of privacy, confidentiality, data protection and image rights.

Copyright
Under UK law photographs are recognised as copyright works provided time, skill and labour were expended in producing them. Generally, the author of the photograph will be the owner of the copyright in that photograph.

The laws governing copyright have changed over time and it is the law which was in force when the photograph was taken which determines who will be considered to be the author. For photographs taken after 1 August 1989, the general principle is that the author of the photograph is the person who creates it. Usually, this will be the photographer. Occasionally, however, the subject matter of the photograph may have been specifically arranged or composed by a third party. In these circumstances, the third party may be the author of the photograph for copyright purposes. Alternatively the photographer and that third person may be deemed to be joint authors.

Commissioned photographs
Where the taking of a photograph has been commissioned and there is no express agreement in place between the photographer and the commissioner of the photograph, the general rule is that the photographer will own the copyright in the photograph. The commissioner will have an implied licence to use it, either generally or at least for the purpose for which it was commissioned. If the commissioner wants to own the copyright then a written assignment from the photographer is required. If such agreement is made before the photograph has been taken it will constitute a future assignment of copyright such that on taking the photograph the copyright will vest in the commissioner.

Photographs created with the input of other persons
As set out above, the general rule is that the photographer is the author and therefore the owner of copyright in his photographs. Where, however, a third party such as an advertising or marketing agency, is involved in the creation of the photograph and undertakes the arrangement of the subject to be photographed, the photograph may be deemed a work of joint authorship. Without any formal assignment, the copyright will be jointly owned by the photographer and the third party.

Where copyright in a photograph is jointly owned either of the joint owners may themselves exploit the copyright in the photograph independently but neither may dispose of or license their rights in the copyright without the consent of the other. There may also be implied restrictions on what each party can do with the photograph depending on the overall context of the situation.

Photographs commissioned for business purposes
If a photograph is made specifically for the commissioner's business and at its expense and neither party can have contemplated that the photographer would have any genuine use for the photograph himself, it may be that an agreement to assign the copyright can be implied. At the very least, it will be implied that any implied licence to the company commissioning the photographer will be exclusive for the purpose for which the photograph was taken. This still leaves open the possibility of use for other purposes so it is generally better for both parties to clarify the position by express agreement.

Photographs commissioned for private and domestic purposes
There is an additional right attached to photographs which are commissioned for private and domestic purposes, such as for a family portrait, namely the right of the commissioner to privacy in respect of such photographs. This right is a moral right known as the "privacy right".

The commissioner of a photograph for private and domestic purposes has the right not to have copies of the photograph issued to the public nor to have the photograph exhibited or shown in public nor to have the photograph included in a broadcast or cable programme service.

This right of privacy is distinct from copyright. It is likely that the photographer will retain ownership of the copyright in accordance with the general rules set out above with the commissioner having an implied licence to use the photograph at least for the purpose for which it was created. This will generally not extend to making further copies.

The right of privacy passes on death of the commissioner to such person as he may specify in his will. If no such person is specified, the right is exercisable by his personal representatives for the benefit of his estate.

In the event that a right of privacy is infringed an action may be brought for breach of statutory duty owed to that person without any requirement to prove damage. This right of privacy ought not to be confused with a general law of privacy which does not exist under UK law.

Conclusion
Generally, the photographer will be the owner of copyright in a photograph but there are a number of instances where the commissioner or subject of the photograph may have implied or express rights in respect of a photograph taken under commission. To clarify the position a formal agreement in writing ought to be entered into before taking any photographs under commission. This could take the form of simple terms and conditions attached to an order form.

Confidentiality
The taking or publication of a photograph without the photograph subject's consent may constitute a breach of confidentiality by the photographer or publisher of the photograph. In order to show that the taking of a photograph breaches an individual's right to confidentiality that individual must be able to show that the image in the photograph was obtained in circumstances importing an obligation of confidence. In Douglas and Others -v- Hello! And Others 2003 it was held that the rights of freedom of expression of Hello! magazine were overborne by the rights of the Douglases under the laws of confidence in respect of the publication of photographs of their private wedding.

Data Protection
The applicability of the provisions of the Data Protection Act 1998 ("the Act") in respect the publication of photographs without the subject's consent was addressed in the Douglas case. It was held that Hello! was a "data controller" for the purpose of the Act, the unauthorised pictures represented "personal data" and that publication of them in England formed part of the process falling within the scope of the Act. Accordingly, Hello! was under a duty to comply with the data protection principles. One of the key principles is that data processing must be done "fairly and lawfully" which involves a consideration of how the data was obtained. Consent to the publication was required from the Douglases being the "data subjects". It had not been attained and accordingly, it was held that Hello! had breached the provisions of the Act.

Image Rights
It seems from the case law regarding disputes in relation to photographs that the people most likely to complain of the taking or publication of photographs are celebrities. This is because it is very often the physical appearance or image of those celebrities which earns them their celebrity status and generates their income.

A new breed of rights, generally known as image rights, has emerged in the last couple of years. Image rights typically include name, image, signature, nickname, shirt number (for football players), voice, autograph, likeness, initials and any other characteristic or idiosyncrasies. Photographs incorporate these image rights in a number of ways depending upon the nature of the photograph. Whether the publication of such photographs is likely to be met with a claim by the celebrity that his image rights have been infringed depends very much on how the photograph is used, for what purpose and the status of the celebrity.

Since image protection is not specifically recognised in English law, a claim for misuse of image rights is most likely to be brought in passing off by way of false endorsement as was the case in Eddie Irvine v. Talksport Limited & Another 2002. In that case, the Defendants were the owners of a radio station which issued a brochure to potential advertisers which incorporated a manipulated picture of Irvine showing him holding a portable radio to which the words "Talk Radio" had been added. It was held that this constituted passing off. The court awarded damages on the basis of a reasonable endorsement fee and Irvine was awarded £2,000. On appeal this was increased to £25,000.

Further information
Shelley Beaumont is an Intellectual Property lawyer specialising in the giftware sector at law firm Halliwell Landau. She can be contacted at the firm's Manchester office on 0161 835 3003. Halliwell Landau is one of two firms of intellectual property specialist lawyers that provide the GA's Copywatch service.

September/October 2010
issue 61
available now