Photographers copyright is currently a highly contentious issue with the explosion of the internet and the blatant theft of images from photographers web sites, or perhaps worse, the claiming of license to use and sub-license images by social media web sites and networks like Facebook and Instagram. However, it is not all doom and gloom.
It is essential for photographers to know the truth about copyright, especially in South Africa, as the true financial value in photography is not in day rates or selling a picture but is in owning the copyright to your photographs empowering you to sell the license for use of your work.
Bill Gates is one of the wealthiest men in the world today. He did not make his fortune selling software, he made it selling license for use of his software. He understood the true value of intellectual property, as do the businesses who exploit photographers in South Africa. Even though many businesses present photographers with contracts to sign on a ‘take it or leave it’ basis, claiming ownership of their work, every contract is negotiable. The successful negotiation of a contract starts with knowing the truth about your rights.
Copyright is a legislated right that forms part of Intellectual Property (IP) law. Other IP rights are patents, trade marks and registered designs. Unlike other IP rights, copyright is an automatic right and does not have to be registered in order to be enforced. The name copyright is actually the right to prevent copying and in Europe is also referred to as ‘author’s right’ or ‘originators right’.
The copyright law of the Republic of South Africa (RSA) that is applicable to photographers is very different from that of most first world countries. The international standard for copyright for photographers is that the photographer owns the copyright to all images created by the photographer, regardless of who commissions the images and what the images will be used for, unless an agreement is entered into specifying otherwise.
The basic underlying principle of the protection of copyright is that the work must be original. This means that the work must originate from the author (creator) and must not be copied from another authors work. The work should be the result of the author’s independent labour and not an imitation of an earlier work. There is a fine line between copying, appropriating and referencing.
Copying is the act of making something similar or identical to an original. The problem is telling which is the original and which is the copy. The best example of this in photography is a photographer photographing another photographers photograph, the challenge being in determining which is the original.
Appropriating is a nice way of saying stealing and is to take something for someone’s own use without the owner’s permission. Millions of photographs are appropriated from the internet every day which is illegal blatant copyright infringement.
Referencing is legal and is the act of mentioning or alluding to someone else’s work, using their work as a source of information or inspiration and then creating a new, original work.
South Africa’s Copyright Act of 1978 (Act 98 of 1978, as amended) covers literary, musical and artistic works, cinematograph films, sound recordings, broadcasts, program- carrying signals, published editions and computer programs. ‘Artistic work’ includes paintings, sculptures, drawings, engravings and photographs, irrespective of the artistic quality thereof.
“To leave the world a bit better… to know that one life has breathed easier because you have lived. This is to have succeeded.”
Ralph Waldo Emerson