Legal, Copyright and Ethical Issues

79_58158_0_JudgeDreddVol39I

These comments apply to my understanding of UK / EU law, provision varies by jurisdiction and of course in some parts of the world are extremely restrictive.

Copyright:

In the absence of any contract or agreement stating otherwise, the person who took the photograph owns the copyright for that image. This is fundamental to photographic law and the key element here is “in the absence of any contract or agreement stating otherwise”. This means that if the photographer hasn’t agreed to anything or signed a contract to the contrary, they own the copyright. Copyright does not need to be declared or registered it is automatically assigned in law and remains the authors unless and until assigned to someone else.

The most common exception to this is where the photographer is employed by someone else and a contract exists whereby it is explicitly agreed that the copyright of the images will be assigned to the employer. In the situation of full time employment, where an employer pays tax and national insurance contributions on your behalf, the employee does not own copyright on work created during the normal course of their employment unless there is an agreement to the contrary.

Only the owner of the copyright can license the copying of images, including the electronic copy and storage of digital images, and the issuing of the image to the public.

Permitted Uses:

‘Fair Dealing’ under UK law allows the copying of copyrighted material under certain circumstances without the need for prior permission. These generally cover; publicising work for sale, copying for research purposes, educational use, copying for review, submission in court as evidence.

Duration of Copyright:

The copyright of an image either taken in the EU or by an EU nationality photographer is 70 years from the end of the first year in which that person died. This is applicable to work created after 1st Aug, 1989.

Assignment of Copyright:

The owner of the copyright can pass on (assign) the rights of an image to another but should only do so after careful consideration. To sell the copyright outright requires the owner’s agreement in writing. It should be remembered that once copyright is re-assigned to another party there is no claim on any proceeds made from further sales or control of the image use.

It is important not to confuse owning an image with owning the copyright to that image; the first does not mean the latter. Owning a print of an image gives the owner no rights to that image, even if that owner happens to be the subject of the image e.g. in the case of a portrait.

Moral Rights:

These remain with the originator of the work regardless of who currently owns the copyright. The Copyright, Designs and Patents Act 1988 defines these rights as follows…

  • The right to be identified as the author of the work (also known as Paternity Right).
  • The right to object to false attribution of the work.
  • The right to protect the integrity of the work.

The first two items basically allow the author to be credited with the original work and prevent another from claiming authorship. The third item, also described as “the right to object to derogatory treatment of the work”, is most relevant today where images can be digitally ‘manipulated’ almost without trace.

It should be noted that the right to be credited only works if it is ‘asserted’ and should never be just assumed. The use of statements such as “moral rights asserted” or “all rights reserved” on the back of images, as meta tags in digital images or as footers on websites are all legally sufficient ‘assertions’.

Model Release Forms

Model releases have become a legal minefield and the prevailing mindset is that you should always have a model release if planning to sell images for commercial use.

In fact in most situations you do not actually require a model release and if everybody conducted themselves in a fit and proper manner then there would be little problem. However, regrettably, that is not human nature and particularly if significant sums of money are involved. It is the publisher of an image and not the photographer who is liable for any damages so in particular a photographer does not need a model release however because publishers are now so wary of being sued it’s unlikely that a photographer will be able to sell images without one, certainly to any major publisher.

Further it is the issue around “commercial use” of images where the issue of liability arises. For example a photograph of a celebrity arriving at an event could be sold by the photographer and published by a newspaper with no model release as it would be considered a newsworthy event in the public interest. If this wasn’t the case newspapers would never have any photographs. The same photograph could also be presented as and sold by the photographer as a work of art and again this would not require a model release.

However if the photograph was used by the designer of the shoes the celebrity was wearing to promote their product in a commercial advert “as worn by xxxx” then the celebrity could potentially sue for inappropriate use. So what model releases do is set out in advance what uses are permitted of the images and eliminate the possibility of any dispute later – “I didn’t know what they would be used for” or “I didn’t agree to that use”.

This applies to both sides i.e. the model can specify restrictions on use – for example may not wish to be associated with certain themes or issues :- Drug abuse, child cruelty etc.

As an example of the complications that can arise in the late 1970’s when pop star Madonna was an unknown student she did some work as a nude model in art classes for photographer Herman Kulkens and she signed an open ended release allowing Kulkens to use the images as he saw fit. Subsequently in 1985 when she had become a world famous star both Playboy and Penthouse published the photographs. This was the subject of a separate multimillion dollar court case between Kulkens and the publishers as to who had the rights to publish the photos but one thing was very clear the existence of the signed model release meant the one person who could not prevent publication or receive any additional remuneration, other than the $10 per hour originally received, was Madonna.

As a result of examples such as this Model releases have become legal documents often containing intimidating and indecipherable legal phrases which in truth will probably never apply to most people or situations. As with all contracts they tend to favour the side of the person requesting it in order to retain as many rights as possible basically the photographer wants to have no restriction on how he might eventually use / sell the images.

This can be off putting to prospective models and can be an obstacle whereas in reality it’s a simple proposition; the model receives a fee for her time which may be cash or images for her portfolio and the photographer has the right to sell the images.

There is a degree of professional integrity required by all parties and successful partnerships and collaborations are much more likely to emerge based on mutual trust and respect rather than having to refer to the small print of a model release. So for example neither party should use the images for purposes that weren’t agreed e.g. the model can’t sell the images full stop as they are not the copyright holder and the photographer shouldn’t sell them for purposes likely to be considered derogatory to the reputation of the model.

A scan of the model release used for the advertising brief (personal details deliberately obscured) ;

College_027

Legal restrictions on photography

Mass photo gathering in UK.
There are relatively few restrictions on taking photographs in the UK basically you are free to take photographs of anyone or anything in a public place. In recent years some further restrictions have been imposed as a result generally of security concerns although famously the stop and search powers of the Terrorism Act 2000 which had often been used to deter photographs were declared illegal in 2010 following much protest from the photographic community. As a result police offices cannot confiscate your equipment or force you to delete images.

Further in general the right to take photographs on private land upon which permission has been obtained is similarly unrestricted. However, landowners are permitted to impose any conditions they wish upon entry to a property, such as forbidding or restricting photography. Two public locations in the UK, Trafalgar Square and Parliament Square, have a specific provision against photography for commercial purposes without the written permission of the Mayor, or the Squares’ Management Team and paying a fee and permission is needed to photograph or film for commercial purposes in the Royal Parks.

Lastly you technically need permission to photograph on the Railways and the London Underground certainly for commercial purposes but in practice it is tolerated for private use although the use of tripods is sometimes a bone of contention primarily as a safety issue on busy platforms. Persistent or aggressive photography of a single individual may come under the legal definition of harassment.

It is a criminal offence (contempt) to take a photograph in any court of any person, being a judge of the court or a juror or a witness in or a party to any proceedings before the court, whether civil or criminal, or to publish such a photograph. This includes photographs taken in a court building, or the precincts of the court. Taking a photograph in a court can be seen as a serious offence, leading to a prison sentence.

Photography of certain subject matter is restricted in the United Kingdom. In particular, the Protection of Children Act 1978 restricts making or possessing pornography of under-18s, or what looks like pornography of under-18s. However, the taking of photographs of other peoples children in public spaces is not illegal although has become increasingly socially unacceptable and it would be a brave photographer that would engage in such activity today without seeking permission of parents / legal guardians.

For example I would thought twice about taking this scene of children playing in a fountain in the UK, It was taken in Medillin, Columbia. South America generally has a much more wholesome and community based collective view of looking after children.

148-Medillin

It is an offence under the Counter-Terrorism Act 2008 to publish or communicate a photograph of a constable (not including PCSOs), a member of the armed forces, or a member of the security services, which is of a kind likely to be useful to a person committing or preparing an act of terrorism.

Ethical Considerations

There is a great deal of legislation covering advertising and related activity e.g. selling practices in the UK anda variety of enforcement agencies. There is a very useful government website that gives a plain English explanation of the rules and where consumers can complain if dissatisfied with an advert. Click here to visit the site : https://www.gov.uk A summary of the key elements and provisions is listed below.

Overview

All marketing and advertising must be:

  • accurate
  • legal
  • decent
  • truthful
  • honest
  • socially responsible (not encouraging illegal, unsafe or anti-social behaviour)

There are regulations that restrict what advertisers can and can’t do. As well as the regulations, there are 2 advertising codes of practice that should be followed to help you advertise legally in the UK.

Requirements for specific products

There are also specific requirements that apply to certain sectors, such as:

  • food
  • alcohol
  • beauty products
  • environmentally friendly products
  • medicines
  • tobacco

For example, you can only claim a drink is ‘low in alcohol’ if it contains between 0.5% and 1.2% alcohol by volume.

Advertising Codes

1 – Non-Broadcast media (e.g. print, on-line)

The Committee of Advertising Practice code has rules that cover non-broadcast advertising (eg print, online), sales promotion and direct marketing (eg telesales and email).

The code specifies standards for accuracy and honesty that businesses must stick to, including specific conditions, eg:

  • advertising to children
  • causing offence
  • political advertising

2 – Broadcast media (e.g. TV, radio)

You must follow broadcast codes that cover issues including taste, decency and product placement.

As well as setting standards about accuracy and honesty businesses must stick to, they also have rules about things like scheduling.

General broadcasting rules

You also need to follow rules about taste, decency, product placement andsoforth that apply to all broadcasting.

These are called ‘broadcast codes’. Find out more about them on the Ofcom website.

Enforcing the rules

The rules are enforced by the Advertising Standards Authority (ASA).

Anyone who thinks advertising rules have been broken can complain to the ASA within 3 months of the advert appearing.

If an advert breaks the rules, it may be withdrawn. If the product doesn’t match the description or the advert breaks the law, the advertiser could be prosecuted.

This entry was posted in Advertising Photography, Windows on the World.

Post a Comment

Your email is never published nor shared. Required fields are marked *

*
*