In the fifth part of our AOP series, Nick Dunmur examines how copyright enables creators to safeguard their work
The latest part of our AOP series focuses on this fundamental issue
The Association of Photographers (AOP) celebrates is 50th birthday in 2018 and we remain as passionate about promoting and protecting our members as we did when the association was first established in 1968. We fought tirelessly for the Copyright, Designs and Patents Act that thankfully came into force in 1988. But what does copyright actually mean for a commercial photographer today?
Copyright underpins the nature of how nearly all photographers make a living. As a form of intellectual property and enshrined in legislation (the aforementioned Copyright, Designs and Patents Act 1988), it is a property right and gives creators the ability to generate income by licensing the use of their endeavours, as opposed to selling ‘units’ of photography, as if they were factory owners shifting boxes of widgets. The words ‘copyright’ and ‘licensing’ are equally applicable to all forms of creative output, not just photography.
This notion of selling use not unit is vital to making our businesses sustainable as well as maintaining and safeguarding the industry in which we work, not just for ourselves but for the next generations of photographers who seek to carve out a living as we have done. Contrary to what some might believe, most photographers, with a few rarefied exceptions, do not make huge incomes and in fact year-on-year since the advent of digital imaging and the widespread use of the internet, these incomes have shrunk overall. It has become harder than ever to generate enough to pay for the business overhead and a decent enough salary to enjoy a reasonable lifestyle – nothing fancy or overthe-top, but some holiday time and a few bells and whistles that make life more comfortable. It’s true that we are very lucky to be able to earn from something that most enjoy as an activity and would do regardless of whether we were getting paid for it, but that is not the point. The moment you’re a professional, the scene shifts and it becomes necessary to think about the bottom line and the future.
Copyright – or, the right to prevent and control copying – gives us flexibility and gives our clients and buyers protection over the use of a creative piece of work. It is the case, however, that not enough of our clients and buyers understand that this creator’s right is enshrined in law, was hard-fought for, and that fees paid to us do not automatically confer ownership or title in the work to them. This is no different to if you were to buy a music track or a book; you do not own the content but have purchased the right to use a copy for yourself. You might own the paper the book is printed on, but you do not own the words themselves, likewise, you might own the hard drive or media the image sits on, but you do not own the image itself. The fees we charge cover our investment in skills, training, equipment, insurance, some profit (we’re in business, after all) and generally also include some element of licensing. This helps keeps costs to the client lower than they would be if the client wished to own the work created outright.
Unless a photographer assigns the copyright in their work in writing to someone or has accepted the terms of a contract that contain a copyright assignment, the ownership of the intellectual property rights, or copyright, remains firmly vested in the creator.
Sitting alongside the economic element of controlling copyright is a set of moral rights, equally enshrined in the same legislation. These are there to help protect us, in terms of reputation (and hence our ability to earn), as well as affording the client or commissioner some protection in the form of the right to prevent publication in certain circumstances. They are what’s called inalienable rights, so they cannot be sold or assigned, but they can be waived and often we will see contracts that seek an assignment of copyright as well as a waiver of moral rights.
Lastly, it is worth mentioning that there are several exceptions to copyright law, instances when the law does not apply to certain uses of works protected by copyright. We might consider these to be important to balance the rights of the creator against the needs/desires of a potential user of a piece of work. Suffice it to say that the copyright regime in the UK is one of the best there is. Although there is room for improvements, overall it is a system that’s emulated across the world.
Above: Copyright should establish a system that benefits both creator and client.