joint copyright?
Posted on: Fri, 03/26/2010 - 21:28
joint copyright?
I'd like to know what happens when an artistic work of some kind, that is obviously copyrighted by it's creator, is photographed? Clearly, the copyright in the artistic work is not transferred to the photographer!
Example: artist creates artistic work, whether it be painting, sculpture, fashion, whatever. Commissions photographer to take photos of it, for purposes of promotion.
Do the artist and the photographer share copyright in the photograph?
Can the photographer restrict the artist's usage of the photos?
Can the artist restrict the photographer's usage of the photos?
Scott Gair
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Leaving aside the photography of flat art like paintings all photography of 3 dimensional art creates a new copyright in the photograph.
The way you phrase your question seems to refer to what used to be called 'access' rights. In other words there is collaboration between the creator of the 3d work and the photographer because the sculptor, designer etc grants access for the express purpose of making the photograph. In setting up this collaboration the two parties can decide what they please over the copyright of the resultant image.
It is a complex field and even lawyers can get it wrong. I have signed the access forms for the Tate Gallery and the National Trust and both of them confuse what copyright is. The NT have a blanket form which suggested they owned copyright of a river and waterfall. The Tate, if I remember correctly, used the phrase Royalty Free when they seemed to mean the opposite; restricted licence.
Bob Croxford
This is a can of worms that needs to be sorted out before the photos are taken!
Photographing a painting will normally be an infringement of the painter's copyright unless the photographer can argue that the photos are substantially new works that are capable of their own copyright.
There are arguments both ways about this. EG a simple scan or photocopy is a reprographic copy that cannot be argued to be a new work, so can't have copyright. But photographers who spend a great deal of skill and effort lighting and photographing artworks can and do sometimes claim that their creative effort is sufficient for the photos to be entirely new works and capable of copyright.
A glaring example of the latter is Bill Gate's photolibrary Corbis, which in the 1990's contracted to photograph the collections of the National Gallery and Tate, many of which paintings - which were purchased for the nation from bequests and grants - are long out of copyright and in the public domain. You might hope that the resulting electronic versions would similarly be public domain, but Corbis insists they own copyright and if you want to use them must pay Corbis rates. Nobody else is allowed to photograph the originals under the terms of the deal with the galleries, so Corbis have a monopoly.
The legal validity of Corbis' claimed copyright has never been tested because it would mean a very costly court case.
Joint copyright is possible, but usually only comes about via agreement, less often as a result of a court ruling on disputed copyright ownership. It generally means that neither party can act independently, they must both agree any use.
As said at the beginning, this all needs to be contractually agreed before the work is undertaken if problems are to be avoided. Once there is a dispute over who owns what and may do what, only the lawyers are certain to win. If you are in this situation, you need proper legal advice if there is any real value at stake. Please consult a specialist copyright lawyer not the average High St general solicitor. The Law Society will be able to recommend someone, or we list a few in our legal links.
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