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Copyright: Photographers and Assignment


Most photo shoots go smoothly. And very few cases of infringement of copyright ever find their way into court. But things can – and sometimes do – go wrong. Particularly the unauthorised use of what you may consider to be “your” photos. But ask yourself, are they actually “your” photographs, in legal terms? Not sure? Then read on…..

Assignment of Copyright and Contract Law are matters of the civil law. They apply to photographs, but not to all photographs; if the images are unlawful (e.g. obscene, pornographic, or “dangerous”) they are beyond the scope of civil law and open a can of (criminal law) worms. For the purposes of this article, we’ll assume that the pictures you’re going to have taken fall within the scope of the law. The comments that follow also assume that the transaction is a “normal” one, and not a “paid in kind/barter” scenario – the latter is virtually impossible to act upon within the bounds of the law of copyright.

It is very important that the matter of copyright is raised and agreed by both parties well before the shoot takes place. The model should tell the photographer in advance exactly what degree of assignment is required, whether total (the best option from the model’s point of view) or partial (allowing, for example, the photographer to use a specific photograph or photographs for his own portfolio and advertising). It’s advisable to send the photographer a copy of the Assignment document to look at before you even meet. If he/she doesn’t agree with it, by all means discuss it, but be prepared to look elsewhere! Some professional photographers may ask you to sign a “Model Release Form” – be extremely wary of doing so and seek advice from someone experienced in this fiel before you do. You may be signing your rights, control and, of course, your privacy away if you’re not very careful.

The law gives the creators of literary, dramatic, musical, artistic works, sound recordings, broadcasts, films and typographical arrangement of published editions, rights to control the ways in which their material may be used. Photographs fall into the “artistic works” category – they are the artistic creation of the photographer. However, a photograph, for instance, is classified as an artistic work, but when this has been digitised (and thus becomes machine readable code), the digital image is then classified as a literary work. If this digital image is then printed out, it becomes an artistic work again. So, the photograph belongs to the photographer; it becomes his property. Like any other piece of property, the copyright of the photographs can be sold, transferred or disposed of, and this is where the legal matter of Copyright Assignment comes into play.

Here is the relevant legal extract:

Copyright, Designs and Patents Act 1988, Chapter V, Section 90

Assignment and licences

 

  1. Copyright is transmissible by assignment, by testamentary disposition or by operation of law, as personal or moveable property.
  2. An assignment or other transmission of copyright may be partial, that is, limited so as to apply—
    (a) to one or more, but not all, of the things the copyright owner has the exclusive right to do;
    (b) to part, but not the whole, of the period for which the copyright is to subsist.
  3. An assignment of copyright is not effective unless it is in writing signed by or on behalf of the assignor.

Clause (3) is vitally important. A verbal agreement has no real legal force. You must have the Assignment in writing, properly signed.

The next step is to decide whether you wish to acquire the total copyright, or whether to allow the photographer to retain one or two specified photographs for his/her portfolio or promotional purposes. If you decide on the latter, you should specify the photos concerned e.g. “reclining, in red dress and red shoes”, “standing, in leather miniskirt” or whatever is applicable. Your Assignment document will need to contain a specific clause to this effect.

Here is a sample Copyright Assignment document which typically gives you total control over your photographs. You effectively buy this control from the photographer by paying him/her a fee.

 

ASSIGNMENT OF COPYRIGHT
Pursuant to the Copyright, Designs and Patents Act 1988 and specifically to S.90 ss.3 thereof.


It is understood and agreed to that the “Copyright Owner” (“Assignor”) identified below intends to assign and transfer all rights, title and interests in the described “Copyrighted Work” to the “Purchaser” (“Assignee”) for the agreed consideration more fully described below.

1. The Copyrighted Work that is the subject of this Agreement is described as:

2. The Copyright Owner/Assignor is the sole author and sole owner of all rights, title and interest in the previously described copyrighted work.

3. The Purchaser/Assignee desires to acquire the entire interest (including intellectual property interest and rights) of the Copyright Owner/Assignor in the previously described Copyrighted Work.

4. The parties agree that a sum of £ ______ shall be paid by the Purchaser/Assignee to the Copyright Owner/Assignor. In exchange for this consideration, the Copyright Owner/Assignor hereby assigns to the Purchaser/Assignee, his/her legal representatives and assigns, all copyright in the previously described Copyrighted Work and any interests thereon, together with the right to secure renewals, reissues, and extensions of such copyright, which interest in right shall be held to the full end of the term for which such copyright or any renewal or extension thereof is or may be granted.

WHEREFORE, the parties below acknowledge that they have read and understood this Agreement and voluntarily accept the responsibilities, duties and obligations set forth herein according to the laws of the United Kingdom.

Copyright Owner/Assignor

Name (Print or Type):……………………

Signature: ……………………………………..

Date:


Copyright Purchaser/Assignee

Name (Print or Type): ...............................

Signature: …………………………………….

Date:



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