Using photographs: beware the maze of copyright

Under the Copyright, Designs and Patents Act 1988 (CDPA) a freelance photographer generally owns copyright in his photographs unless a contract states otherwise. Copyright in a retouched image – depending on the type of retouching – may be jointly owned by the photographer and the retoucher. If the photographer is an employee, the employer owns the copyright.

There may also be moral rights – chiefly, to be identified as the photographer, and to object to distortion, mutilation or other treatment damaging the photographer’s reputation.

If the photographer is not credited (and should have been) or objects to the manner in which an image is used, he can seek an injunction to stop the use of the image and claim damages. There is very little guidance in the UK on what damages might be awarded for breach of a moral right, but the degree of distress or damage to the reputation of the photographer will be relevant.

Some items in a photograph may be protected by copyright. These include architectural works, paintings, other photographs, sculptures and some logos. Photographing a copyright work amounts to reproducing it, so the copyright owner’s permission may be required. Use of the image without permission normally entitles the copyright owner to apply for an injunction.

Damages are generally linked to a reasonable licence fee. For example, in 2002, The Sun published a hospital’s photo of a patient, convicted murderer Laith Alani, without consent. Infringement damages were set at £450 (the amount the court thought the hospital would have charged if willing to license the image). However, The Sun’s reckless use of the image, causing the hospital distress, incurred punitive damages, bringing the total award to £10,000.

Some public areas enjoy special protections: to take commercial photographs in London’s Trafalgar Square and Parliament Square you have to obtain permission from the Greater London Authority and pay a fee. Otherwise, the copyright owner’s consent is not required to photograph a building. But treat this with caution – copyright in architectural plans may still be infringed by a photograph of the building. This exception also applies to photographs of a sculpture or model for a building permanently in a public place.

If a photograph of people is commissioned for private and domestic purposes, such as for a wedding, the commissioner generally has the right not to have the photograph issued to the public. Otherwise, copyright law does little to restrict use of images of people, although individuals are protected by harassment, data protection and privacy laws.

Defences to copyright infringement include a general defence if the copyright item in the photograph is incidental. A further defence is ‘fair dealing’with a work for the purpose of criticism and review, provided the work is available to the public and the author is acknowledged.

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