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Interviews

© is for Copyright: <br class="br_visual" />how well do you <br class="br_visual" />know yours?

© is for Copyright:
how well do you
know yours?

© Collections Picture Library

December 2014

How well do you know the rules when it comes to Copyright? Sal Shuel, a respected expert on the subject after many years as administrator for the British Association of Picture Libraries and Agencies (BAPLA) lifts the lid on a law that confuses many – yet is actually quite clear. In her own words she explains British copyright legislation, with a nod to EU Copyright law too...

Too many photographers are taking too many photographs for a market that doesn't want to pay for anything and a readership that doesn't know a good picture when it stares them in the face. The tough and determined may succeed professionally if they take the trouble to learn about Copyright, understand their rights and police usage. Everyone else is an amateur and for them, there is little hope of running a Porsche on the proceeds of sales.

The basic concept of photographic copyright is absurdly simple. Whoever pressed the shutter owns the rights. It doesn't matter who owns the camera, the iPhone, the Canon, the Box Brownie or the Gandolfi. Copyright in the result, whether analogue or digital, belongs to whoever pressed the shutter. There are exceptions but not many and as new legislation appears, it doesn't change the basic concept; it just adds bits here and there. Everyone, except the most obtuse, eventually works out which knob turns a camera on and which knob works the shutter. The image that appears is swaddled in laws, the originals of which were written three hundred years ago to protect etchings, woodcuts and lithographs before photography was invented. Despite their ability to interpret an instruction book written in garbled English, most photographers are baffled by the apparent mystique of Copyright.

The current Copyright Act is the result of many Acts of Parliament. Protection has gone from life plus seven years to life plus 50 years from the year the picture was taken to life plus 50 years from the date the picture was first published (which effectively gave perpetual copyright to anything unpublished – which was practically everything) and then a big change in 1988 which got rid of all the anomalies and gave protection for life plus 50 years, extended to 70 years in 1996 when the EU decided all member countries should be the same, which caused confusion because the extra 20 years revived a lot of out-of-copyright images. An early act introduced inconvenient problems that still persist. From 1862, employed photographers had no rights and that still applies today. 'Employed' means that an employer pays National Insurance and PAYE on behalf of the photographer and gets to keep all rights in all photographs taken during the course of work, which is grossly unfair but the regulation stubbornly persists.

Understanding the law

The Act isn't difficult to grasp, includes a lot of legislation irrelevant to photographers and, in plain English, clarifies everything that is. Picture users who want to circumnavigate the rules explore the small print in an effort to get something for nothing. Photographers should do the same in order to protect their rights. Ignorance of the law is no excuse and that works both ways.

The restrictions, most of which are not specifically listed in the Act but have arrived through the back door via alternative legislation, include a growing list of what can't be photographed. Unlike the French, the UK has no established Privacy Laws as such. The French may have invented street photography but anyone who tries to practice it in France is in for a shock. In the UK, those who believe they are being hounded by photographers can fall back on the Human Rights Act but it works both ways. It guarantees 'the right to respect for private and family life, home and correspondence' which the aggrieved interpret as the right not to be hounded by the paparazzi but it also decrees 'Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers' which the paparazzi interpret as the right to do whatever they like.

© Collections Picture Library

Images of children, particularly in this day and age, need very careful scrutiny and must always have a signed model release form before they can be sold commercially.

Photographic restrictions are manifold. Steer clear of (amongst many other things) schools, playgrounds, hospitals, children (particularly if naked), army camps, power stations, military personnel, London's Trafalgar Square, Paternoster Square and Canary Wharf (all private property believe it or not), plus National Trust properties, road accidents and police arresting people. Anyone working in uniform unless they are on show are also 'no-nos', as are airports, France, government buildings anywhere and 'Uluru' (Ayers Rock, Australia). In the UK never photograph money, stamps or maps because the Bank of England, Royal Mail and Ordnance Survey own the rights. Don't be tempted to take pictures in a court of law. In some countries it's necessary to seek permission before photographing the exterior of a building but not in the UK. If it's visible from a public right of way it's fair game although the security guards will claim otherwise. Sculpture in a public space is fine. Sculpture on private property is not. A large crowd is fine, a small crowd is not if people can be identified. An interior shot with furniture, china and glass, paintings, fabrics and wallpaper may include items that are the copyright property of other people, who may demand compensation for copyright infringement if they see their designs used incidentally in an otherwise innocuous portrait of a man sitting at a table drinking coffee. Someone designed the table, the mug and the sweater he's wearing. Someone could claim.

Publishing problems...

If, despite the restrictions, a photographer creates lots of photographs of things he should have left well alone, he owns the copyright in everything regardless of subject matter (although he might prefer to deny ownership of pictures of naked children) and ownership of some pictures could lead to prosecution in the name of National Security. It's publishing that causes problems. 'Published' means books, newspapers, magazines, leaflets, editorial or advertising, social media and websites but not exhibition prints for sale although once a print is published in a catalogue, it's published. Publication of restricted or intrusive material can lead to fines, jail, seizure of goods, computers and archives, not to mention hefty bills for copyright infringement, trespass, breach of contract and lawyers costs. Breach of contract may seem obscure but a ticket to a National Trust property is a contract. If it says 'No Photography' it means 'No Photography'. Failure to comply is breach of contract.

© Collections Picture Library

Steer clear of photographing crime scenes or policemen if they are arresting someone...

Until 1988, commissioned work was the property of the commissioner and photographers couldn't use for their own purposes, any image commissioned by a client. The new act remedied that but recognised that commissioned photography for private purposes, weddings, family portraits and the like, were a special case. Whilst the photographer owns the rights, the pictures can't be used without the permission of the commissioner and equally, the commissioner can't use them without the permission of the rights holder. This ensures for instance that wedding pictures can't be sold to tabloid newspapers by either side if something goes disastrously wrong on the honeymoon and the tabloids start waving cheque books.

Know your rights in the digital age

Having negotiated all the hurdles and accumulated an archive of images, a photographer can rest assured that as things stand in 2014, rights in the material will subsist for 70 years from the end of the year in which the photographer dies. The rights then pass to next of kin – and it's a good idea to make a will early, stating who should have the rights because it needs to be someone who wants them and knows how to handle them.

Time was when a photographer supplied an image to a client having discussed terms in advance. An original analogue transparency or a black & white print would be sent with stringent terms and conditions printed in tiny type on the back of a delivery note, threatening dire consequences should the image be lost or damaged. Digital imaging got rid of all that. Photographers threw out analogue cameras and delivery notes, embraced digital heart and soul and enthusiastically put everything at high resolution on the web including digital versions of all the best analogue material they had shot in the last 50 years. All this to the joy of picture users everywhere who reckoned they had carte blanche to use anything they fancied. The belief was, and still is, that if it's on the web, it's free.

If there is no efficient watermark, photographic material on the web is vulnerable regardless of resolution. If there is nothing embedded in the image saying that it's the copyright property of the photographer, there is little reason for any picture user to think that it's not a freebie. Disreputable clients used to make illicit dupes. Nowadays, they just strip the metadata, either by accident or design. It's illegal but it happens and the digital copies are far better than the old dupes. There is software to discover illegal usage that also helps with licensing. PicScout is a piece of software that does exactly what it says on the tin, is as useful a tool as any professional photographer could want and is readily available to all. The tools are there. Find them and use them.

Policing usage

Controlling usage of material is a minefield. UK photographers who choose to register their images in the US, as shrewd American photographers do, may reap huge rewards if the images are used illegally but there is no such system in the UK. It's hard enough coping with errant picture users here without having to do battle with foreign companies. Lawyers who specialise in intellectual property don't come free or even cheap and buying a lawyer is rarely an option although a massive problem demands a top-of-the-range Intellectual Property lawyer regardless of cost. The experience will be terrifying and it could be worth it but for most things, common sense is sufficient. If a company uses a picture without asking, send a bill, not an angry, huge one but a bill which represents roughly what would have been requested had the deal been legitimate – plus a bit. When they don't pay, send a statement and then another and then go to the Small Claims Court and get it that way. It's tedious but it's worth it and it will end up costing nothing because if the paperwork is good, the Court will make sure the amount is paid plus costs. If the company is abroad, the bill may never be paid and frankly, it's not worth bothering unless the loss is vast.

© Collections Picture Library

In the UK, many National Trust properties impose strict conditions when it comes to photographing them. Know your rights if you wish to sell your work. Buying an entry ticket which stipulates 'No Photography' effectively means you are entering into a contract agreeing to their rules...

What of recent changes?

Recent changes in copyright law have been aimed at making it easier for large picture users – like the BBC – to clear all the pictorial rights they require in one go. The result is Collective Licensing. Clearing houses, known as Collecting Societies, do the lot then pay the relevant photographers, probably not as much as they may like but it will be something. Photographers are included automatically but they may opt out if they wish. Collecting Societies initially looked upon this as manna from heaven and tried to include huge amounts of photographic and video material for which they had no rights whatsoever but they were prevented. Eventually photographers could find themselves receiving unexpected small amounts of money for usages about which they know nothing, old reproductions from books, uses on TV and the like, all of which is better than a slap in the face.

Also recent are Orphan Works, copyright images unused because rights holders are unknown. Museums in particular were keen to exploit their archives so new legislation emerged in 2014 aimed at releasing a huge amount of material. Unknown rights holders are protected and will be remunerated if they come forward. In order to use an Orphan Work, a user is obliged to make a 'reasonable and diligent search' for the rights owner. Licenses will be granted by the Intellectual Property Office and a market rate reproduction fee charged. It's up to photographers to police their archives. They can access the IPO register to check if anything had escaped and been granted a licence, thus recovering their property and receiving an appropriate reproduction fee.

Note: Sal Shuel's article is meant to give an overview of current UK legislation. For the official view, please visit the UK's Intellectual Property Office link on the right and also the official European Union website where Copyright variances are listed and explained.

Biography: Sal Shuel

Sal Shuel

Sal Shuel is widely regarded as one of the photography industry’s real authorities on Copyright and its use (and misuse). She started out her career as a successful illustrator, working for charities and companies such as Age Concern, Sainsburys and The Times newspaper supplements before taking on the job as administrator of the British Association of Picture Libraries and Agencies (BAPLA). This role put her in the front line of Copyright law and she rapidly became an expert on the subject. Sal lives in Muswell Hill, London, England, with husband Brian.