Copyright on photos of art
There is a grey area surrounding who owns the copyright of photographs of original works. Often, an artist will employ a photographer to photograph their work and are left wondering who owns the copyright. The simplest answer lies in how the artist commissioned the photographer to take the images, if a contract had been drawn up before the photographs had been taken then they should clearly state who the final copyright owner will be. Where there are any discrepancies, the Copyright Design and Patents Act 1988 should be referred to.
Original works and copyright
In the UK the artist who has made the original work will be the owner of the copyright. The exception to this is if the work was made during the course of employment, at which time, the copyright will be owned by the employer. Copyright is given automatically in the UK and requires no formal registration. If any work was done in collaboration with another artist, both artists will be joint copyright holders unless stated otherwise in an agreement. This law also applies for original photographs.
Definition of original work
In the UK a copyright will only be given to a piece if it is original. As there is no formal definition as to what original actually means in the Copyright Designs and Patents Act 1988 and it is often left to the courts to determine whether they believe a work is original or not. Lawyers have since been able to work from the verdicts of cases centred on originality to be able to establish a criterion to judge if a work is in fact original.
Copyright only covers the execution of an idea e.g. the labour and skill which was exerted by the artist to create a piece. Thus they will only judge if a work is original based on the final work as opposed to the ideas which led to the work being made.
The result of this is that if a work is simply copied from another, original work, the new work will be judged a copy and thus will not be liable for copyright protection despite the fact that the artist may have invested a lot of skill and labour into making the piece. If however an artist or photographer decides to use the same landscape as another artist or photographer and the work that results of this is very similar to the original artist, they will still gain a copyright. It is the copying of works, not ideas which results in work being deemed unoriginal.
In the UK there has been no clear cut case determining whether a photograph of an original work will gain its own copyright.
From what UK law stipulates to be original however, one can assume that photographs of original works will not gain their own copyright as the majority of the new work will simply show the work and execution of the original artist despite the fact that the photographer would have been required to use their skill and labour in order to make the reproduction.
To avoid confusion it can be advisable that artists commissioning photographs of their work include in their contract that the photographer will not gain copyrights over any of the resulting images. Any contracts or agreements should be written and signed before any work begins. This is supported by copyright law in the UK as long as both parties agree to the terms included in the contract.
Artworks which are photographs
An artist can sometimes commission a photographer to take images of a work which they have directed themselves, as opposed to simply taking an image of an already existing work. As there is no original work, and merely a construction to make a new work, no copyright will exist until the photograph has been taken. The artist will need to ensure that they agree with the photographer before work begins, on who will own the copyright of the final images. If it is not agreed, then the photographer will automatically gain the copyright to the images.
Privacy rights for commissioners
A moral right included in the Copyright Design and Patent Act 1988 states that the commissioner of a photograph for domestic or private reasons has the right not to have the work seen in public in any way. This can be a beneficial loop hole for artists as, if they state to the photographer at the beginning of a shoot, that the images are being commissioned for private or domestic reasons, although the photographer may own the copyright to the images, if they make them public in any way, they will be infringing on the moral rights of the artist and thus be liable for legal action to be taken against them.
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