Photographers are being warned that people who help set up a photo shoot may later claim copyright if a written agreement is not drawn up beforehand. The caution, issued by a leading copyright expert, follows a case held at the Patents County Court last month.
Legal debate over whether a client can be the co-author of a photograph surfaced in a copyright wrangle involving images of businesswoman Karren Brady who stars in The Apprentice television show.
Professional photographer Tyson Sadlo has won rights over six images of Brady that he shot for publication in Today’s Business Woman – a printed magazine published by London-based firm Oxygen 10.
The photo shoot took place in London two years ago.
In an interview with Amateur Photographer, on 6 August 2012, Sadlo said he charged around £500 for the commission, not including expenses and the cost of an assistant.
Sadlo said this was below his normal rate and that he was hoping for
additional income from any future syndication of his photos, as he owned the copyright. The photographer agreed a fee of £250 to cover post-production costs.
Sadlo and his syndication agency Celebrity Pictures Limited subsequently sued B Hannah Limited – a company in the same group as Oxygen 10 – claiming it published the images in BUPA Health Magazine and on a website called Celebrity Angels, without consent.
The publishers claimed they had issued a contract to the photographer granting worldwide exclusivity, and that it held copyright or joint copyright in the images.
Sadlo claimed he never received a contract.
Mr Justice Floyd, who was presiding over the case, agreed.
The legal argument therefore hinged on whether the client held rights over Sadlo’s images, given that both parties accepted the shoot was a ‘team effort’ involving two employees of the publishers who helped set it up.
Commenting on the case, Charles Swan, a partner at media law firm Swan Turton, explained that although the legal author of a photograph is the person who creates it, this ‘isn’t necessarily the photographer or only the photographer’.
‘There may be cases where one person sets up the scene to be photographed (the position and angle of the camera and all the necessary settings) and directs a second person to press the shutter at a moment chosen by the first, in which case it would be the first – not the second – who creates the photograph.’
Swan added: ‘There may also be cases of collaboration between the person behind the camera and one or more others in which the actual photographer has a greater input, although no complete control of the creation of the photograph – in which case it may be a work of joint creation and joint authorship.’
However, Judge Mr Justice Floyd concluded there was no evidence suggesting that the client’s staff controlled ‘any aspect of the taking of the photograph’, said Swan.
Before the shoot, Sadlo was given a brief, but it only contained ‘general instructions’, as follows:
- Cover shot – a smart and professional portrait shot of Karen in a business-like but approachable pose. Please allow plenty of space around her for cover lines and the masthead
- Inside pages – mostly portrait shots ranging from one more serious business pose as a link to her judging in The Apprentice (perhaps similar to your Paris Hilton shot) through to more relaxed shots, such as looking off camera laughing. Perhaps we could also try Karren sitting on the sofa with a laptop or cup of tea, or marking up a business contract.
Judge Mr Justice Floyd ruled: ‘I do not think these general instructions to the photographer as to the type of photographs – or the very general acceptance that there was a team effort involved in the photo shoot as a whole – are sufficient to make anyone other than Mr Sadlo the author of the photographs.’
Commenting on his rights victory, Sadlo – who is Karren Brady’s personal photographer – told Amateur Photographer (AP): ‘This [case] is good for photographers… I was only trying to stand up for my rights under fair usage… It’s a photographer’s duty to make sure this is seen through.’
In light of the case Sadlo advises all photographers to be ‘very clear’ about the terms and conditions of a shoot, no matter what type of photography they are commissioned to do.
Copyright expert Charles Swan adds: ‘The main lesson to be drawn from this case, for both clients and photographers, is one which lawyers never tire of repeating: Get it in writing.
‘A simple written agreement between the publishers and the photographer setting out what rights the publishers were to have would have avoided a large amount of trouble and expense for both parties.
‘Litigation, even in the Patents County Court is always expensive.’
He warned: ‘Photographers should also be aware that others involved in a shoot may later claim partial copyright ownership as joint authors.
‘This is unlikely to be an issue with a client who has signed a licence agreement confirming that you retain copyright, but has your assistant signed a document confirming that you will own all copyright in the product of their assisting work?
‘This may be implied, but one signature is worth a thousand implied terms.’
The judge has instructed both parties to agree ‘all outstanding issues including costs and damages’.
Sadlo told AP that Karren Brady backed him ‘100%’ in his fight for rights over the pictures.