Photographs and photographers have been headline news in recent
months. The hounding of Diana Princess of Wales by the paparazzi
has led to the introduction of a much tougher Code of Practice by
the Press Complaints Commission. The courts have looked at the use
of unauthorised photographs involving Princess Caroline of Monaco
and the actor Gorden Kaye. The band Oasis were forced to seek the
protection of the courts to prevent The Sun newspaper reproducing
posters of the cover photograph for their latest album Be Here
UK laws relating to ownership of copyright in photographs have
always been, and remain, something of a nightmare. Disputes
involving allegations of plagiarism of photographs continue to
arise - recent examples including use by BBH in a campaign for
Liberty of themes originated by Helmut Newton, an Ogilvy & Mather
campaign for Rothmans which was alleged to have borrowed heavily
from a photograph by Marc Riboud and a Lowe Howard-Spink Tesco
advertisement which was alleged to borrow heavily from photographs
by Sue Packer.
Advertisers have also experienced the unwelcome problem of taking a
licence to use a photograph only to find that the owner has sold
equivalent rights for use in a competitor's advertising. We have
been involved in a long running dispute involving the sale in
Germany of a Swiss newspaper, where it is alleged that the
advertiser's rights to reproduce a photograph in an advertisement
in the paper were limited to Switzerland and did not extend to
Ownership of the Photograph does not mean you own the copyright
Ownership of a photograph (negative or print) does not give you the
right to reproduce it. Ownership of the physical photograph and the
copyright in it are separate rights. It is the copyright owner, who
may not necessarily be the owner of the negative or print, who has
the exclusive right to copy the photograph. If you copy without the
consent of the copyright owner, you infringe copyright. You can
also infringe if you possess or deal with a copy which you have
reason to believe is an infringement.
So who owns the copyright?
Copyright in the UK does not require registration. It comes into
existence by law when it is created. Ownership is not
straightforward because it depends on when the photograph was
- For photographs taken on or after 1 August 1989, the
photographer owns the copyright unless he is an employee and took
the picture in the course of his employment, in which case his
employer owns the copyright.
- For photographs taken between 1 July 1912 and 31 July 1989,
copyright is owned by the person who commissioned the photograph
unless it was taken by an employee during the course of his
employment, when the employer will own the copyright. If it was not
commissioned, a copyright will be owned by the person who owned the
negative. Special provisions govern photographs taken by employees
of newspapers and magazines.
How long does copyright last ?
Copyright lasts for a very long period and so it is likely to be
subsisting other than in relation to very old photographs. If the
photograph was taken on or after 1 August 1989, copyright expires
70 years from the end of the calendar year in which the author of
the photograph (who may or may not be the copyright owner) dies.
The author is normally the photographer unless somebody else has a
significant input into the composition of the photograph in which
case joint ownership could arise. If the authorship of the
photograph is unknown, then copyright expires 70 years from the end
of the calendar year in which the photograph was taken or first
made available to the public. The position in relation to
photographs taken before 1 August 1989 is complex. As a rule of
thumb, one can only be certain that copyright has expired in a
photograph if one knows that it was taken before 1944 and that
copyright was not subsisting in it in another country within the
European economic area on 1 July 1995.
The author (not the copyright owner) of a photograph taken on or
after 1 August 1989 acquires "moral rights" in the photograph,
which are different and separate from copyright. These are, first,
the right to be identified as the author of the photograph and,
secondly, the right not to have the photograph subjected to
derogatory treatment. The right to be identified as author must be
asserted in writing. Treatment includes any form of doctoring, and
derogatory treatment includes distorting or mutilating the
photograph or otherwise adapting the photograph in a manner which
is prejudicial to the honour or reputation of the author. The right
to be identified as the author of does not normally apply to
photographs taken by employees in the course of their employment
and the right not to have the photograph subjected to derogatory
treatment only applies to employees if they have been identified as
What if a photograph is taken outside the UK?
The guidance above only applies to photographs taken in the UK.
Copyright or equivalent rights are determined by local laws and
whether copyright subsists in other countries in a photograph taken
in the UK or vice versa depends upon international
What steps should I be taking?
If you want to use a photograph, you must either ensure you own or
have a licence to use the copyright. It is common for licences to
be granted for limited purposes. Assignments and licences of
copyright should be in writing.
Ownership of copyright gives you the unrestricted right to use the
picture (subject to moral rights). An exclusive licence prevents
the image being used elsewhere by the copyright owner or another
Recently, Princess Caroline of Monaco, who had lost her hair,
courageously posed for a photograph which was included in a
collection of photographs published by the photographer. The Times
obtained a licence from the photographer's agent and published the
photograph. The Sun decided that it also wished to publish the
photograph. It could not obtain a licence from the agent in time
but published without a licence saying that because the agent had
granted a licence to The Times, it believed that he would not
object to publication of the photograph in The Sun. The court
decided that, whilst it might be common practice for newspapers to
publish a copyright photograph after one newspaper had published,
in the expectation of paying any licence fee retrospectively, it
was plainly unjustified and unlawful.
Recreating a scene
An advertisement which does not copy but borrows heavily from the
composition of a photograph is also in danger of infringing
copyright. It is a question of fact and degree, depending on how
much is taken of the original photograph, including the props,
people, background and mood. In the US, a photographer photographed
a nude model, then sold the copyright. Two years later he took
another photograph of the same model in the same pose, and
published the photograph himself. There were some differences
between the two photographs, but the court ruled that the
similarities were much greater than the differences and the second
photograph infringed the copyright in the first.
By contrast, no infringement was found in a more recent UK case
involving the album sleeve for Oasis' third album, Be Here Now. The
photograph used for the sleeve shows a partially filled swimming
pool containing a white Rolls Royce. A freelance photographer
invited to view the shoot took some photographs himself. One of his
photographs was very similar to the one chosen for the album sleeve
and was published in The Sun with an offer for a poster of the
photograph. The court rejected Oasis' claim that copyright existed
in the composition, which had been supervised by Noel Gallagher.
However, the court decided that the photographer had breached his
obligations of confidentiality.
Photographs taken without consent
UK law does not prohibit the publication of photographs taken
without consent. This was illustrated in a 1990 case in which the
well known 'Allo 'Allo actor Gorden Kaye was photographed by
journalists from The Sunday Sport while he was recovering in
hospital from injuries. The court was powerless to prevent
publication of the photographs so long as The Sunday Sport did not
seek to imply that Mr Kaye had consented to be photographed. The
judge said that the facts of the case were "a graphic illustration
of the desirability" of new legislation to protect the privacy of
Such legislation will soon be in place as the European Convention
on Human Rights is now being incorporated into English law. For the
first time individuals will have a legally enforceable right to
"respect for private and family life, home and correspondence".
Also it may be that the court may have the power to grant an
injunction to prevent the publication of a photograph taken by a
Right to privacy in certain photographs
If a person commissions a photograph for private and domestic
purposes on or after 1 August 1989, he has the right not to have
copies of the picture issued to the public or exhibited or shown in
public. So you cannot use, say, commissioned wedding photographs or
photographs of celebrities taken at private functions in a campaign
Press Complaints Commission's Code of Practice
The PCC recently revised its Code of Practice in response to public
disapproval at the manner in which Diana, Princess of Wales was
pursued for photographs. The Code restricts the use of long lens
photography to take pictures of people in private places without
their consent and obtaining pictures through "intimidation,
harassment or persistent pursuit". Editors must refuse to publish
photographs from freelancers who do not comply. The only sanction
for breach of the Code is for the PCC to investigate the complaint
and issue an adjudication which must be printed by the
Photographs: key points
The Law: a brief summary
- Ownership of a photograph does not include the right to
reproduce the photograph. You will need an assignment or licence of
the copyright for this, which should be in writing.
- Licences should preferably be exclusive. Since the standard
terms of trading of most picture libraries do not provide for
exclusivity, care should be taken to ensure that they do not grant
similar rights to a competitor for a period of time.
- Copyright is usually owned by the photographer or his employer
if he took the photograph in the course of his employment.
Different rules apply to older photographs.
- Copying without the copyright owner's consent is an
infringement and the owner may be entitled not only to a licence
fee but also to an injunction and/or penal damages.
- Copyright in photographs in the European Union is now for the
life of the author plus 70 years. Different rules apply to older
- The author of a photograph acquires moral rights, including the
right to be identified as author and not to have any photograph
subjected to derogatory treatment.
- A parody or the borrowing of a theme can amount to
infringement, depending on the facts.
- New sanctions exist to discourage the commercial exploitation
of photographs taken in circumstances involving a breach of
- UK copyright law only governs photographs taken in the UK;
other countries' laws will apply to photographs taken or used
outside the UK.
- If you want to use an existing photograph, you should assume
that it is subject to copyright unless taken before 1944.
- Ensure you either own the copyright or have an exclusive
licence to use the photograph.
- When commissioning a photograph, ensure the copyright is
assigned or exclusively licensed to you.
- Take advice before publishing parodies or borrowing a theme
from an existing photograph.
- Any adaptation of a photograph, or part of it, may infringe the
author's moral rights.