I recently came across some of my wedding photos on a Portuguese wedding blog. The blogger was nice enough to offer credit via a link to my website, but she copied these photos from my blog and shared them to hers without asking for mine or the couple’s permission. It wasn’t that I was upset about – it was quite a compliment – but I didn’t feel that it was right. I asked about this on Facebook, appealing to my clever ‘law’ friends to guide me in copyright laws. The conversation was very informative and made me wonder whether photographers and wedding bloggers are aware of copyright laws. Philipa Farley has written an article to help us understand…
As a wedding venue owner in a past life (well, Mom was the owner, technically), I’ve had occasion to work with service providers across the board. Hooray Weddings’ status a few weeks back caught my eye in the sense that it covered a grey, sticky area that nobody really talks about. Having a legal background, I approach the topic of copyright in photography a little more technically than most.
South Africa has acceded to the Berne Convention and the TRIPS Agreement, so in essence our law flows from there. We have a local Copyright Act with some interesting amendments which I will discuss below. At the outset, remember that copyright comes into being automatically so you don’t need to state or put marks on ‘things’ that you have the copyright, unless it is to clear up confusion. It just ‘is’.
In simple terms, for photography, the person responsible for the composition of the photograph is considered to be the author of the photograph. So, our local Copyright Act ensures that copyright vests in the photographer EXCEPT for when somebody commissions and pays for the photography that occurs. If this is the case, the copyright vests in the person who commissioned the photograph or photographs. So in the case of wedding photography, the bride and groom.
Important points to note:
– Copyright for photography has a duration of 50 years after the death of the photographer.
– Copyright can be transferred in writing with signature.
– Distribution of photographs (for which you do not hold the copyright) for the purposes of trade is an infringement of copyright for which you can be sued.
The Copyright Amendment Bill that is currently under discussion has some interesting provisions that need to be noted. Ownership of copyright held by individuals automatically transfers to the State upon their death. So, after you die, the State owns the rights to your wedding photographs. Further along in the Bill, the State cannot assign copyright to others. So, the State owns the rights to your wedding photographs for the rest of the period of the copyright and nobody else can ever hold that right. Photographers! There is a resale right/commission set at 5% in the Bill. This means, that if you aren’t correctly covered, and you publish paid articles using the photographs belonging to a client, the client can make a case for 5% (or a percentage of the full fee) of the fee. The way it is written, there could even be an argument made that if their photographs resulted in you making bookings, they could be entitled to 5% of the fee of the booking. (Side note, after you die, and if your wedding photographs that are still copyrighted are used to generate funds, the State makes a lot of money!)
When you book a client, do you discuss the terms of the agreement in light of the above? Have you considered the fact that a client has ‘staged’ the ‘production’ of their wedding? If I had to argue on behalf of a wedding–ee who was irked that their photographs had been used for advertisements and so on, I would also argue that it is not ethical or correct to take pictures on behalf of the service providers of the settings without permission from the client. The client dreamed up those settings and the client has paid for you to be there (whether it is for the time or for a set number of photographs – without the client, you wouldn’t be there in the first place. Without permission, from the client, you are unequivocally violating their copyright by passing on photographs to third parties.
So if, for example, the florist asks you to hand over photos of the bouquets from the wedding – you could get into trouble for doing so without the permission of the bridal couple who paid you, (if you haven’t contracted with them to own the photographs yourself). The best route to take in this scenario, would be to suggest that the florist contact the bridal couple after they have received their photos to make arrangements. In the same token, if the florist were to save photos of the bouquets from your photography blog and paste them to her own website without your or the couples permission, you are well within your rights to charge a usage fee and/or demand she remove the photographs until such fee is paid as she is violating copyright . The fee should go to the person who owns the copyright or rights to licence.
UNLESS, you have a contract with the client and have a signature to confirm that copyright vests in you. You can then grant them the rights to a set of printed pictures or pictures in digital form with redistribution rights to post on social media and so on. You can also in this scenario allow third parties usage rights and charge for those rights.
Consider your client agreements and update them. With the Amendment Bill coming through, some provisions can’t be contracted away (for now, unless changed) such as ownership vesting in the State upon death. Make sure your agreement covers points such as:
1. who is the copyright holder,
– photographer: grant usage rights to the client
– client: grant usage rights to the photographer for advertising purposes
2. providing photographs with and without watermarks,
3. the ownership of the ‘raw’ images,
4. the archiving of the ‘raw’ images, and
5. third party distribution.
Prevention in this case is better than cure, especially when dealing with irked wedding clients and other service providers.
Just a note to wedding industry professionals from the Hooray Team:
If you want to share the photos from a photographer’s website, because your work features in the photograph (flowers, decor, venue etc), you will need to ask permission. Once you have got permission from the photographer to use an image, offer due credit by putting the photographer’s name in the caption, or better yet, a link to their website. Same goes for Instagram and twitter. If you want to get on the wrong side of a photographer, use their photos without their permission or share their photos without crediting them.
When in doubt CREDIT!
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