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Three screens and no free memes

Article by Brendon Ambrose, Associate, Spoor & Fisher

People around the world are now consuming media using the so-called “three-screens” – their smartphone, computer and television. Media consumption now takes place throughout the day, using one’s smartphone and computer, and continues into the evening on one’s television. A result is that the internet, as opposed to magazines and television, is fast becoming the default medium for media consumption, whether video, photographs, graphics or music.

This has presented an opportunity for marketers to differentiate their client’s advertising campaigns by making greater use of images within these campaigns. From a marketing perspective, this opportunity has been discussed ad nauseam and I do not intend to add to it. I simply intend to provide a brief introduction to the law of copyright in photographs within South Africa. This is because far too many reputable firms have, with the best of intentions, been nabbed using, photographs for which they obtained no right to use.

Using a photograph in an advertising campaign, without license from the copyright owner, would constitute an unauthorised reproduction in terms of the Copyright Act 98 of 1978 (“Copyright Act”). Consequently, such unauthorised use, beyond being an embarrassing faux pas, may result in the firm losing a client or even being guilty of copyright infringement. A common misconception is that because an image is available online, it is “in the public domain” and free for use – this is certainly not the case and authorisation from the copyright owner is always required.

To avoid such a career limiting move is easy: determine who the copyright owner is and obtain a license to use the photograph in the campaign. Determining the copyright owner, however, is not always a straightforward process.

Before determining who the owner of the copyright is, it is important to determine if copyright subsists in a photograph. In South Africa, there is no registration requirement when it comes to obtaining copyright in photographs, which are regarded as “artistic works” in terms of the Copyright Act. Copyright subsists automatically. There are, however, three overarching criteria set by the Copyright Act which determine if copyright subsists in a photograph. Namely:

  1. Is the photograph original?
  2. Does the photograph exist in a material form?
  3. Was the person responsible for the composition of the photograph a “qualified person”?

Originality has nothing to do with the aesthetic quality of the photograph, nor does this requirement mean that the photograph must be entirely new and novel. The bar of originality, in terms of our case law, is set very low. The photograph must merely come out of the authors own effort and skill in creating the composition of the photograph.

The existence of the photograph in “material form” is of vital importance. Copyright can only subsist in something once it has been created. One can never claim copyright in an idea they had for photograph. It is only once the photograph has been taken the copyright will subsist in it. For example, I could have the grand idea to take a photograph of a Labrador Retriever, on a unicycle, juggling lemons. Until I actually take the photograph, however, I have no rights to stop anyone else from creating a photograph as I described it.

Finally, the author must be a “qualified person”. This simply means that the photograph has to have been composed by a South African citizen, a person ordinarily resident in South Africa or a person who is a citizen of, or ordinarily resident in the Berne Convention country. Most countries with which you would want to do business are members of the Berne Convention, including, Djibouti and Lichtenstein, just in case you were wondering.

If the three criteria are met, subsistence of copyright will be determined and a “work” is created. Once a work is created it is appropriate to ask: Who is the owner of that work?

The default position of the Copyright Act is the author is the owner of the copyright in the work they create. The author of the copyright subsisting in a photograph is the person responsible for the composition of the photograph. While the photographer may well be responsible for the composition of the photograph this will not always be the case. An art director, for instance, may well set up all the content required for a photograph and merely instruct the photographer to take the photograph. In this instance the art director would be the author of the photograph and, consequently, the copyright owner.

Copyright in a work is an asset and consequently ownership may be assigned. This assignment must be in writing, may be contained in the contract with the author or could even be entered into subsequent to the work’s creation. Copyright in work created within the course and scope of an employee’s employment will belong to the employer.

The copyright owner will have exclusive entitlement to authorise the reproduction, publishing (if as yet unpublished), or adaptation of a photograph, or even the inclusion of a photograph in a film or television show.

In our connected world, the trend is for photographers to place their portfolios on their websites. The photographer, in all likelihood, would be a qualified person, the photographs likely original and since the photographs exist, they are in a material form. Therefore, it is prudent to assume that copyright will subsist in the photographs within the photographer’s online portfolio.

Regarding ownership of the copyright in these photographs, in most instances photographers are responsible for the composition of the photographs within their own portfolios. Consequently, the photographer would be the owner of the copyright subsisting in photographs within their online portfolio.

Having their portfolios online allows photographers to gain substantial exposure. Conversely, it makes copying their photos far easier and considering how most of our screens are now high-resolution, the quality of these photographs is decent. Compounding the risk of the photographs being copied, search engines use image recognition and, now, artificial intelligence to allow for images to be easily discovered.

There are a number of ways firms can mitigate the risk of copyright infringement in advertising campaigns:

  1. They may determine the owner of the copyright and obtain a written license to use the photograph;
  2. The photographs may be commissioned by the firm, with the contract explicitly transferring ownership in the photographs to the firm;
  3. The images may be obtained from online libraries with broad usage rights. Most major search engines now have an option to search for images narrowing the results by usage rights. On Google, this option may be found under ‘Tools’ and then ‘Usage Rights’;
  4. Purchase stock images with commercial use rights. Stock images from the likes of Adobe or Pexels, by way of example, are of reasonable artistic quality. Be sure to check the terms and conditions of use as the rights obtained will be limited by the “conditions of use”.

With our fancy LTE-A connections, 5.5-inch and 65-inch screens, photographs flood our devices. Consequently, we take this visual media for granted which makes it easy to forget that these photographs are, in fact, owned by someone. Obtaining rights to use these photographs is imperative.

Simply, if you are unsure if the photograph given to you by the eager holiday intern is protected by copyright, assume that it is.

This article was first published in Business Day.

Spoor & Fisher is a proud Partner of the NSBC.