The use of photographs in advertising - copyright issues

United Kingdom
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 Now.

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 Germany.

Ownership of the Photograph does not mean you own the copyright in it

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 taken.

  • 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.

Moral rights

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 the author.

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 conventions.

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 licensee.

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 individuals.

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 trespasser.

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 without consent.

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 newspaper.

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 photographs.

  • 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 personal privacy.

  • UK copyright law only governs photographs taken in the UK; other countries' laws will apply to photographs taken or used outside the UK.

Practical tips

  • 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.