In the South African photography industry, advertising agencies are often the parties with negotiating leverage over ownership of copyright in photographs for advertisements.
South African law regards photographs as artistic works under the Copyright Act 98 of 1978. The default position is that the author is the first owner of the copyright in the work. However, the Act’s section 21 provides for certain exceptions, with section 21(c) setting out the position where a third party commissions the creation of certain works, including the taking of photographs, and pays or agrees to pay for it in money or in money’s worth.
In many instances, advertising agencies will commission a photographer to take photographs. Consequently, without a specific clause in the contract between the “commissioner” and the photographer – specifically excluding the transfer of ownership of the copyright in the photograph – the commissioner will automatically become the owner of the photographs. A similar situation occurs in the case of the commissioning of a painting, the drawing of a portrait, or the making of a gravure, a cinematographic film or a sound recording.
Unfortunately, as is often the case with photography, a large number of photographs are taken during a shoot with only a minute number of photographs being used by the commissioner. In many such instances the surplus photographs are not distinct or unique, and do not allude to any particular product, merchandise or theme central to the commissioner’s desired effect. Accordingly, as the commissioner is the owner of the copyright, these surplus photographs are more often than not discarded or destroyed.
To prevent such waste and to protect the photographer’s work, it is recommended that the photographer include a clause in his/her quotation or contract specifically excluding the transfer of ownership to the commissioner. The photographer can agree, in return for payment, to grant the commissioner an exclusive licence to use the selected photographs, while retaining the right to use surplus photographs at a later stage as he/she may desire. The same principle applies to similar other works commissioned.
What of the authorship of a photograph? The author of a photograph is defined in the Act as the person responsible for the composition of the photograph.
Frequently, an advertising agency (commissioner) will already have a set idea as to what the photograph is to reflect; what is to be portrayed; the arrangement of certain features; and how these elements are to be portrayed in the photograph. The influence of the commissioner may range from a simple instruction to one where a director is appointed and is present during the photo shoot, and dictates exactly how the photographs are to be taken. The director may go as far as to arrange for the contracting of particular models, specific props and/or a particular backdrop, to name but a few aspects.
In such instances, the law is not clear as to who the author of the photographs is. On a strict interpretation of the definition of authorship for photographs, the director may be considered to be the author of the photograph as he/she was the responsible person for its composition. It must be conceded that if it was the intention of the legislature to allow for the director of a photo shoot to be the author of the photographs, similar wording as that used to describe the author for a cinematographic film could have been used.
As technological advancements in photography continue to be developed, as is the case with images being digitally enhanced and altered, it is foreseeable that further instances of confusion over the authorship of photographs will arise.
Accordingly, photographers or commissioners should clearly set out who will be the composer of the photographs in question and, in doing so, clearly define the authorship of the work.
Dale Verster is an associate at Bowman Gilfillan in the Intellectual Property Patents Department