Image is everything: exploring IP in photography

Today, most of us carry a camera. Compared to the equipment-intensive, delicate processes of the past, photography has been digitised and democratised. Now we can all create images and record moments in our lives, instantly editing and curating these to share with our chosen audience.

But whenever we press the button to take a new picture, how many of us are aware that we are entering the intriguing world of copyright, image rights, and privacy? Depending on the content of our image, we may also become involved in trade mark rights and protection. This is a huge and complex topic, so here we have gathered just a few examples and stories to pique your interest in the world of IP and photography. 

Whose copyright is it anyway?

As the UK Intellectual Property Office explains in its “Copyright notice: digital images, photographs and the internet”, photographs are generally protected by copyright as artistic works. The person who creates the image (presses the button in the case of our mobile phone scenario) is usually the first owner of the copyright.

However, if the photo was taken by a person employed by an organisation to create pictures, the employer typically owns the copyright, not the photographer. A different situation arises when, for example, a photographer has made artistic decisions governing the content and composition of an image, but their assistant presses the “trigger” creating the final image. In that case, copyright may rest with the decisionmaker, rather than the trigger presser.

But it isn’t always that simple. A famous case began in 2011, after British naturalist David Slater set up camera equipment in the vicinity of a troop of crested black macaques in Indonesia. The curious monkeys took several pictures of themselves using the equipment and one striking example went viral, becoming known as the “monkey selfie”.After David Slater objected to Wikimedia Commons reproducing the image online without permission, Wikimedia Commons held that no copyright infringement could take place, contending: “this file is in the public domain, because as the work of a non-human animal, it has no human author in whom copyright is vested.” Ultimately, the US copyright office agreed that the picture could not be susceptible to copyright protection because the author was not human. Kluwers IP blog has the full story plus subsequent cases brought by PETA on behalf of the macaque in question.

In the UK, copyright typically endures for the life of the creator plus 70 years from the end of the calendar year of their death. In the event of copyright infringement, there are several routes open to the copyright owner. These range from asking the user of the image to purchase a licence, to taking legal action. Legal action can be extremely expensive for all parties and may result in compensation being paid to the image owner. If copyright is infringed deliberately on a commercial scale, criminal proceedings may ensue.

Celebrities and paparazzi: who has image rights?

The relationship between celebrities and the paparazzi who make money from selling photos of them is often somewhat strained. Celebrities may resent photographers intruding on their private moments, but on the other hand, many court the attention of photographers as an essential part of promoting their personal brand. Recently, however, when celebrities have used paparazzi shots of themselves on their own social media channels, they have faced copyright law suits from the original photographers.

This poses interesting questions in terms of image rights. We could argue that the celebrity is the person who gives the photo its interest and value in the first place; a photo of an unknown bystander typically has less commercial value than one of Taylor Swift, for example.

Undoubtedly, celebrities invest vast amounts of time and money in creating their personal brand and styling, from which the photographer profits when selling a photo to a news outlet. We could argue that such photographs are a collaboration – the brand of the celebrity captured in a specific moment by the photographer combining to create the marketable image. In such a case, the celebrity would arguably qualify for some of the benefits from the photograph’s commercialisation. Suing them for sharing the photo on their own social channels – which itself may bring benefits to the photographer if correctly credited – would seem to be disingenuous at best.

IP Solicitor Chris Robinson, of HGF Ltd, discusses this idea in a great blog on image copyright for IPcareers

Trade marks in photographs

It’s not just the people in photographs that have rights; brands do, too. Recently there have been several cases where brands have objected to their inclusion in celebrity or social media influencer photographs on the grounds of trade mark infringement. Notably, supercar manufacturer Ferrari succeeded in a suit against German designer Philipp Plein after he used their cars as a backdrop in promotional shots for his shoes, with the Ferrari logo clearly visible. The Court of Genoa ruled that the average consumer would be misled into believing there was a partnership between Philipp Klein and Ferrari. Italian law firm Portalano Cavallo has the full story.

Brands working with social media influencers should also take care. Luxury ski resort Aspen sued London-based designer Perfect Moment for sending influencers to its slopes to showcase the brand’s clothing without permission. The resort sued on the basis of trade mark infringement after clothing was produced featuring images of the resort.

Registered Designs are a factor, too. The EU General Court recently invalidated Puma’s Registered Community Design because popstar and entrepreneur, Rihanna, had been photographed wearing the shoes that the design registration protected. You can read more directly from the EUIPO here, but essentially the photos shared by Rihanna on her Instagram predated the design application by such a long time period that the design was no longer “novel” or of “individual character”. Design owners need to monitor disclosure carefully, as the clock starts ticking on the grace period from any disclosure of the design by any party and in any country. Fox Williams go into further analysis here and we covered the benefits of registered designs here.

These are just a few of the considerations around intellectual property rights in photography. It hardly scratches the surface of this fascinating topic, but we hope it sparks your interest.

So next time you take a photo, remember that: image is everything, photos are everywhere, but copyright, design and trade mark rights are important, too!