Photography and Intellectual Property

We have enjoyed a wonderful carnival. Now that the masquerading is over, you might recall crossing the stage beverages on the brain and prancing up and down with your friends, even strangers to your favourite soca songs. You may have posed to have your photographs taken. But have you given it thought…who owns the photograph?

Whether you are a celebrity or not, you do not possess the right to “control the reproduction of your image” said Mr. Justice Biriss in Fenty & Ors v Arcadia Group Brands Ltd (t/a Topshop) & Anor.

The law does not require a photographer to obtain someone’s authorization to take their photograph. Notwithstanding that one must be careful not to infringe on important social interests such as national security, protection of children, right of privacy, etc.

According to the Copyright Act Chapter 82:80 Section 5 (1) (i) photographs acquire automatic protection provided they are original.

Statute defines “photographic work” as the recording of light or other radiation on any medium on which an image is produced or from which an image may be produced, irrespective of the technique (chemical, electronic or other) by which such recording is made; a still picture extracted from an audio-visual work shall not be considered a “photographic work” but a part of the audio-visual work concerned.

Photographers have the following rights:

(1) to reproduce the photograph;

(2) to prepare derivative works based upon the photograph;

(3) to distribute copies of the photograph to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) to display the photograph publicly;

Photography was not always seen as creative. Much resistance was given when it was first invented because of the mechanical process in the 1840s however by the late 19th century it was seen as artistic activity and thus given copyright protection.

The law is clear that in Trinidad and Tobago the rights belong to the photographer.

Generally, there are several written agreements that should be entered into by the parties before a single shoot is taken. This is a non-exhaustive list of photography contracts one in the industry must have.

·Model Release (Adult) Contract

·Model Release (Minor)

·Photo Session Agreement

·License of Rights for Photography

·Property Release

·Portrait Photography Agreement

·Wedding Photography Services Photography Contract

·Gallery Contract for Sale of Photography

·Equipment Rental Agreement

Why are these procedures so important? It shows your professionalism; it protects you and your brand; the parties are certain as to their roles and obligations.

But what happens when in impromptu photo is taken of a celebrity crossing the stage in full regalia? Nothing changes; the owner of the photograph is still the photographer until he decides to releaise, if he wishes, a non-exclusive licence. Individuals have a right of publicity. A person’s image has economic value that is presumed to be the result of the person’s own effort and it gives to each person the right to exploit their own image. It is by virtue of this right, if you use some’s image with their consent you can be held liable. Though this right is often associated with celebrities, every person, famous or not, has a right to prevent unauthorized use of their image for commercial purposes. Therefore I recommend that a photographer should take special caution before using a image of a celebrity for their own commercial gain. When deciding to take photographs of celebrities to use in advertisements or on website, I urge you to obtain their permission.

Notwithstanding that, it is illegal to take photos of people when they have a reasonable expectation of privacy. I hardly see this applicable chipping to the sounds of steep pan music on Monday and Tuesday. Or does it?

Moreover the law affords copyright protection works of mas. Only the owner of a copyright has the exclusive right to reproduce the copyright work. Photographing copyright work amounts to reproducing it. To this end I recommend that “professional” photographers seek a licence from the NCC to photograph works of mas and that NCC has a contractual relationship with the mas bands. This is yet another way to earn revenue for our country. (this is not in place and it is only my recommendation. At present you would have to seek direct permission from all the mas bands). I see no real harm in allowing smart phone users the opportunity to photographs their friends.

The doctrine of fair use can also avail photographers from infringements. It can be used without the owner of the copyrighted material permission and allows limited and reasonable uses without permission as long as they do not prejudice the copyright owner’s rights or interfere with normal exploitation of the work. Fair use is intended to allow the unauthorized use of copyrighted materials for the benefit of society.

Another exception is where the image is a “work for hire”. A work-made-for-hire relationship is where a photographer is an employee hired to take photographs for the employer—example, a photojournalist employed by a newspaper. However it does not cover a photographer who is hired at a wedding or to take someone’s since they are hired for a one off event.

However a photographer can grant a licence to anyone desirous of owning the photo. Bear in mind the author, and the owner can be two different persons, with the author being the photographer. As the photographer you are entitled to specific rights, one of which is to be identified as the photographer. This and the rights identified in section 18 of the Act are known as the moral rights. Copyright and moral rights of the author shall be protected during the life of the author and for fifty years after his death.

To this end I urge readers to view your intellectual property as just that, your property. You should see to its protection and value. You can even think of it as real estate, to get the best buy it must be in the right neighbourhood.

There is no legal requirement to register your photograph or any copyrighted work; Photograph and other copyrighted material are protected by their very nature. You might be familiar with the © or the word “copyright” with a date and name of the copyright owner, posted on creative works.

Notwithstanding that for added protection, I am aware that one can register their copyrighted work with AWESOME COPYRIGHT, the only collection Management Organisiation in Trinidad and Tobago that provides a facility to register your copyrights works beyond music.

We have exceptional talent and subject in this beautiful twin island of ours. I’d like to encourage photographers to have exhibitions, build their brand, register their trademark, register their business and take their talent seriously. Much money is to be made in photography but it must continue to develop and this art must be treated with the respect it deserves.