OWNERSHIP OF COPYRIGHT

OWNERSHIP OF COPYRIGHT

The part of the South Africa copyright act that is particularly relevant to photography is section 21(1) under the heading ‘Ownership of copyright’.

a) Subject to the provisions of this section, the ownership of any copyright conferred by section 3 or 4 on any work shall vest in the author or, in the case of a work of joint authorship, in the co-authors of the work.

Section 21(1)a) of the Copyright Act clearly states that photographers who create their own images (not commissioned) own the copyright to those images by default and are entitled to sell the License for Use of the images. This is in line with internationally accepted copyright for photographers standards. However, sections (b)-(d) are the sections that are problematic for photographers in South Africa.

b) Where a literary or artistic work is made by an author in the course of his employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship, and is so made for the purpose of publication in a newspaper, magazine or similar periodical, the said proprietor shall be the owner of the copyright in the work in so far as the copyright relates to publication of the work in any newspaper, magazine or similar periodical or to reproduction of the work for the purpose of its being so published, but in all other respects the author shall be the owner of any copyright subsisting in the work by virtue of section 3 or 4.

Section 21(1)b) states that if a photographer is employed by a periodical (newspaper/magazine) then the employer owns the copyright to the images the photographer creates during the course of their employment by default. Unless otherwise agreed. This only applies to photographs that are created by the photographer during work hours. Any images created by the photographer outside of work hours are not covered by this.

c) Where a person commissions the taking of a photograph, the painting or drawing of a portrait, the making of a gravure, the making of a cinematograph film or the making of a sound recording and pays or agrees to pay for it in money or money’s worth, and the work is made in pursuance of that commission, such person shall, subject to the provisions of paragraph (b), be the owner of any copyright subsisting therein by virtue of section 3 or 4.

Section 21(1)c) states that should a photographer be commissioned to create photographs and the photographs are created in pursuance of that commission, then the commissioning agent owns the copyright to the commissioned images by default. Unless otherwise agreed.

d) Where in a case not falling within either paragraph (b) or (c) a work is made in the course of the author’s employment by another person under a contract of service or apprenticeship, that other person shall be the owner of any copyright subsisting in the work by virtue of section 3 or 4.

Section 21(1)d) states that should a photographer be employed in any other capacity then the employer will own the copyright to images created by the photographer during the course of his/her employment. Unless otherwise agreed.

Section 21(1)e) is the section that empowers photographers to agree otherwise.

e) Paragraphs (b), (c) and (d) shall in any particular case have effect subject to any agreement excluding the operation thereof and subject to the provisions of section 20.

This means that whilst the employer/commissioning agent owns the copyright by default in Sections 21(1)b)-d), the Author (photographer) is empowered to change this by mutual agreement, and bring it in-line with what is internationally accepted. This can form part of the Photographers job documentation for ease of use.

Section 21(2) states that:

Ownership of any copyright conferred by section 5 shall initially vest in the state or the international organisation concerned, and not the author.

Section 5(2) states that:

Copyright shall be conferred by this section on every work which is illegible for copyright and which is made by or under the direction or control of the state or such international organisations as may be prescribed.

Essentially this means that the copyright to photographs created by employees of, or commissioned by the state, is the property of the state, or prescribed international organisations, for the lifespan of the copyright.

The Copyright Act is applicable to the Republic of South Africa ONLY and does not extend beyond it’s borders. Images commissioned in South Africa for use in South Africa that are then used outside of South Africa fall under the World Trade Organisation Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs), that includes the Berne Convention.

For further information you can purchase ‘EXPOSED – The Business of Photography’ by Deryck van Steenderen, published by Verse Creative.

“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

 

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