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Niet beschikbaar in
January 2009

There are some images that are so powerful it would be impossible to imagine the world without them. They define us, and so it seems remarkable that one such image made its way into the public’s consciousness but without earning a penny for its creator. It may sound implausible, but that’s what happened to Alberto Diaz Gutierrez, better known as ‘Korda’, the Cuban photographer who captured the Marxist revolutionary Che Guevara’s distant glare in 1960.

The image, which has been embossed on T-shirts and posters across the world, was one of two captured by Korda for the Cuban newspaper Revolucion. The paper didn’t run either image, so Korda held onto the shots and seven years later gave them to the Italian publisher Giangiacomo Feltrinelli. Within months, Guevara was dead and Feltrinelli had used Korda’s photo to create a poster that transformed the guerrilla fighter’s image into a cornerstone of pop culture. On that occasion, and every other, Korda received nothing.

In 2000 he eventually launched a lawsuit against a famous vodka brand that had used the image in an advertising campaign. His grievance wasn’t based on financial gain but rather that Guevara never drank and wouldn’t have condoned the usage of the picture. The resulting legal proceedings not only established Korda’s ownership of the copyright but the legal justification for pursuing royalties elsewhere. Korda stood to make a fortune, but he died a year later.

The lawyer who acted for Korda says that much can be learned from the Cuban’s apathy and belated attempts to gain control over his work. “It was Korda’s copyright but for years he took a laissez-faire attitude and did nothing,” says Razi Mireskandari, a partner at Simons Muirhead & Burton. “In the real world, every time one of your pictures is printed, a phantom cash register doesn’t suddenly go clink! There has to be a method of collection - it doesn’t happen automatically. You’ve got to enforce that right if it’s being abused.”

According to the British Institution of Professional Photography, copyright of a photograph belongs to the person who took it, as laid down by the Copyright Designs & Patents Act 1988. The only exception is for permanently employed photographers where, “his or her employer owns the copyright unless they have a contractual agreement to the contrary.”

© Mark Alexander

Mireskandari agrees: “There’s a world of difference between in-house photographers, who receive salaries and expenses for travel and cameras, and freelancers who take shots without any help from anyone else. In the absence of documentation you have to look at the circumstances in which the photograph was taken and I think a key factor is if the photographer was employed or a freelancer.”

Regardless of whether you’re on the payroll or 'on the hoof', copyright is a fundamental part of photography. According to Nicola McCormick, a partner at the Simkins Partnership, a leading media and entertainment law firm in Europe, it is the basis of your creative rights. “Copyright is intended to protect the economic interests of all creative industries,” she explains. McCormick adds: “It is designed to set up a monopoly right for the author of a creative work and then dictate the terms on which the author can commercially exploit that work and how they can prevent others from stealing it. It’s a creature of legislation rather than of case law.”

Thankfully, establishing who originated the work is a fairly clear cut affair especially in the digital age where images are assigned electronic fingerprints giving the exact date that they were created. Indeed the Canon EOS 5D Mark II and EOS 50D cameras offer a feature that allows you to input a copyright notice and your name. It is added to the camera’s EXIF shooting data (it’s not watermarked into an image) and can be viewed using Canon Digital Photo Professional software as well as third-party browsing/image editing programs such as Photoshop.

Third-party verification can also be sought through copyright registers, although simply keeping a record, either as part of a diary or through computer records, should be enough. “Copyright arises automatically,” says McCormick. “People are often under the misapprehension that you don’t own a copyright unless it is recorded in some kind of register or if you publish it with a little ‘c’ next to it. The minute you click your shutter, a copyright work is produced.”

It seems that making it as a photographer may not depend solely on light or camera angles but increasingly on copyright. “If photographers don’t know copyright, they shouldn’t be in the business because they won’t survive,” says Gwen Thomas, the executive director of business and legal affairs at the Association of Photographers (AOP). “It’s at the core of protecting their work and earning money from it. If they don’t know what they can do with it, they’ll end up getting one-off fees.” Thankfully current UK legislation gives photographers ownership over their work for up to 70 years after their death meaning copyright earnings can be bequeathed to those left behind.

While this aspect of copyright law is hotly debated it isn’t the most fundamental shift in the copyright landscape. “The biggest thing has been the expansion of the Internet,” says Thomas, “and the ease with which work can be put there. It’s brilliant because it means photographers can get work from more countries with less effort, but the other side is the myth that everything on the Internet is free to use. Policing your work on the Internet is incredibly difficult.”

She advises photographers to restrict what appears on the web to low-resolution images and to make every effort to include contact information in the image’s metadata. But there is a sting in the tail. Although you may have pressed the shutter release and incorporated your website address into the genetic code of the shot, other people may have been involved in the creation of the work who could claim joint or even overall ownership over it. As we’ve already discovered the terms of employment may have a bearing on this so the best way of addressing this thorny issue is to draw up a contract.

“The best way photographers can protect themselves is through contracts,” Nicola McCormick advises. “Whenever photographers are involved with anyone else in the production of a piece of creative work, a contract can be used to set out the agreement between the parties as to who is going to own the image, who is going to use it and who’s going to pay for it. In practical terms, a contract is the most useful tool a photographer has.”

Copyright is enforced by the legal system in force where the photographer is domiciled, although harmonized rights and international agreements mean there is some parity between countries. The Berne Convention, for instance, ensures signatory countries give citizens from other countries the same protection it gives to its own people when it comes to copyright. While this is comforting, most legal clashes arise when no documentation has been drafted. “The disputes I have to resolve are usually where everyone has relied on a nod and a handshake rather than writing down what the arrangements are,” says McCormick.

© Mark Alexander

So important are contracts that people make a living out of ensuring these binding treaties are drawn up properly and adhered to stringently. Cathy Bennett runs a photographic agency that represents advertising photographers. She says most of her photographers are aware that copyright remains with them; the trick is setting out the stipulations of use as early as possible.

“In the world I work in, there’s a set procedure,” says Bennett. “Clients tell us how they want to use the image and we cost the job on that basis. If they want to use it for something else, they’ll come back and request a new usage. In the estimate we draw up, there’s a specific line about the licence and the use of the imagery. Occasionally, an image will get used out of licence but that’s usually an error rather than someone trying to get around the system. As soon as it’s pointed out, it’s paid for without a second thought.”

Bennett’s advice is echoed by guidelines published by the Association of Photographers (AOP) which suggest that details of the initial commissioned media and intended time period should be clearly stated on the photographer’s original estimate. While an agent would handle this for you, not all photographers are able to justify the agency fees, in which case Bennett suggests seeking out some advice.

“If you’re stuck, contact the AOP or a friendly agent,” says Bennett. “We need everyone to be on the same page, so if I can help someone who doesn’t have an agent to achieve best practice, it’s going to benefit everyone in the industry. Everybody’s a photographer these days, which is great, but it does mean people can undermine the market because they don’t have the business know-how or the understanding of what they’re selling. If you’re unsure, pick up the phone and speak to someone.”