The Patents County Court is proving to be a popular venue for photographic copyright claims. A recent decision deals amongst other things with two old chestnuts common in disputes between photographers and clients:
- Is the client a co-author of the photograph?
- Was a copyright assignment implied?
Tyson Sadlo, a professional photographer, was commissioned for a fee of £250 by the publishers of Today’s Business Woman to take six photographs of well-known business woman Karren Brady.
The publishers later authorised publication of the photos in other publications, BUPA Health Magazine and a celebrity website. Mr Sadlo and Celebrity Pictures, his syndication agents, successfully claimed copyright infringement.
The publishers claimed they sent Mr Sadlo a contract granting the publishers worldwide exclusivity, but the judge didn’t accept this. So the rights acquired by the publishers fell to be decided by considering the circumstances of the photographs’ creation and the nature of the commission.
1. Who was the author of the photographs?
Section 9(1) of the Copyright, Designs and Patents Act 1988 provides that the author of a photograph is the person who creates it.
The author of a photograph isn’t necessarily the photographer, or only the photographer. As the judge in a previous case (Creation Records) case explained:
There may be cases where one person sets up the scene to be photographed (the position and angle of the camera and all the necessary settings) and directs a second person to press the shutter at a moment chosen by the first, in which case it would be the first, not the second, who creates the photograph. There may also be cases of collaboration between the person behind the camera and one or more others in which the actual photographer has greater input, although no complete control of the creation of the photograph, in which case it may be a work of joint creation and joint authorship.
In the present case Mr Sadlo accepted that there was a sense in which the photo-shoot was a “team effort”. However, although two employees of the publisher were present at the shoot, there was no evidence to suggest that they were in control of any aspect of the taking of the photograph. The brief to Mr Sadlo had contained only general instructions:
- Cover shot – a smart and professional portrait shot of Karren in a business-like but approachable pose. Please allow plenty of space around her for cover lines and the masthead.
- Inside pages – mostly portrait shots ranging from one more serious pose as a link to her judging role in The Apprentice (perhaps similar to your Paris Hilton shot) through to more relaxed shots, such as looking off camera laughing. Perhaps we could also try Karren sitting on the sofa with a laptop or cup of tea, or marking up a business contract.
The judge accepted that the photographs were exclusively Mr Sadlo’s creation. He was therefore the sole author of the photographs and the first owner of copyright in them.
2. Was there an implied assignment of copyright to the publishers?
Clients frequently claim that the copyright in a photograph has been assigned to them as an implied term of the commission. Usually this argument fails. The reason for this is that courts apply what is known as “the minimal approach”. This approach was set out in the leading case of Robin Ray v Classic FM PLC and was summarised in the present case in the following way: “If a court does imply a term, it should make no greater incursion into the rights of the copyright owner than is necessary to meet the case.”
The judge here (Mr Justice Floyd) had no difficulty in finding that Mr Sadlo retained the copyright which, as author of the photographs, belonged initially to him. The parties had in contemplation the publication of his photographs in the client’s printed publication Today’s Business Woman. It was not established that the parties had any wider use in mind at the time when the commissioning agreement was concluded (by a series of emails).
3. Conclusion
The main lesson to be drawn from this case, for both clients and photographers, is one which lawyers never tire of repeating: Get it in writing! A simple written agreement between the publishers and the photographer setting out what rights the publishers were to have would have avoided a large amount of trouble and expense for both parties. Litigation, even in the Patents County Court, is always expensive.
Photographers should also be aware that others involved in a shoot may later claim partial copyright ownership as joint authors. This is unlikely to be an issue with a client who has signed a licence agreement confirming that you retain copyright, but has your assistant signed a document confirming that you will own all copyright in the product of their assisting work? This may well be implied, but one signature is worth a thousand implied terms!