As photographers, we often tend to think that we are the owner of the photograph and we can post them anywhere. Sometimes, we do not even bother to ask the person for whom we clicked these photographs, or the persons who may be there in the frame. This is where we invite troubles and land into a long-drawn battle with the client, often ending in bitter relationship, negative reviews, and loss of reputation in an industry, which thrives on name and rapport.
Therefore, it is very important for you to understand your rights and obligations and tread carefully on these slippery grounds. One mistake, and you have lost your reputation in the eyes of your prospective clientele. In particular, when it comes to your photograph, you must know who is the ‘author’ of photograph and who is the ‘owner’. Needless to say, these are two different legal concepts under intellectual property laws.
To make it fairly simple, we have broken down the scray legal jargons and lawyerish-english to explain you, what is the key difference between ‘authorship’ and ‘ownership’ of copyright in a photograph.
We explained earlier, ‘Copyright’ is a bundle of right that is provided to owners of original literary, dramatic, musical, artistic as well as sound recording and cinematograph films to exclusively reproduce their work or substantial part of it. Photographs are characterised as ‘artistic work’, and Section 14(c) of Copyright Act, 1957 provides for the rights of the owner of a photograph.
What is the difference between ‘authorship’ and ‘ownership’ of copyright in a photograph?
Copyright comes into existence as soon as you click a photograph. Photographer is considered as ‘author’ of the photograph. It is usually the photographer who is the first owner of the copyright in a work created by him/her, except when:
1. You have taken the photograph as an employee of a newspaper, magazine, or similar periodicals, under a contract of service, internship, or apprenticeship or for publication in such a medium. In such a case, the owner of the medium is the Copyright owner and the copyrights in photograph can be exercised by him only, and not by the photographer. The exception to this rule is when you have agreed something contrary (oppositive) to this, by way of an agreement or otherwise in writing, in which case, the agreement will prevail.
2. You have taken the photograph for a fee (valuable consideration) at the instance/ instructions of your client who is paying for that service. The exception to this rule is again, when you have agreed something to the contrary, by way of an agreement, in which case, the agreement will prevail. For example, wedding photographs taken for a client.
3. You have taken it in the course of your employment under a contract of service or apprenticeship/internship. For example, photos taken during Diwali event organized by company’s staff.
Who is the ‘owner’ of copyright in a commissioned photography work?
In a commissioned work (i.e., work done for a fee), it is the person who has commissioned the work, who will own the copyright in photograph, as mentioned in point 2 above.
Authors: Vivek Verma & Ankit Rastogi