A particular photographic story caught my eye at the end of 2018, that of the photography copyright story of Salmeron vs Arch Enemy. Salmeron, a photographer and lawyer, was covering Fortarock, a metal festival in Nijmegen in the Netherlands and photographed a number of bands including Arch Enemy. The lead singer re-posted an image by Salmeron on Instgram which in turn was reposted by a clothing company called Thunderball who had created products worn by the lead singer. When approached by Salmeron, they referred his correspondence to the band who took issue with the situation and escalated the matter by trying to have Salmeron banned from photographing any live music whatsoever. Cue internet outrage and, unfortunately, threats to all involved and concluded with the shuttering of Thunderball. Salmeron’s initial post can be found here.
Among the numerous comments, both for and against all sides concerned, it was these two, made repeatedly by the individuals concerned, that caught my eye;
1. “The contract is illegal when it states that the band or (more commonly) the festival becomes the sole owner of the photos. That’s not how it works under the Bern Convention (sic). If you waive the rights of your work, then it will be available to the public, as in ‘to everyone’, not just a band or an organization, that would be hillarious. Hence, it violates the law when it rewrites it.”
(-in regards to contracts thrust under the noses of photographers moments before they, potentially, start shooting at a concert or festival)
2. “Much of the value of this photograph is due to the intellectual property of the fashion designer, and (in the US at least) copyright law makes consideration for that. Consider for example that in the US you can’t sell photographs of buildings without regard for the intellectual property of the architect. The same law extends to sculpture (which can cover fashion, being in essence wearable sculpture) and choreography. You could easily make the case that this music photo violates copyrights on both sculpture and choreography, and the photographer has only marginal rights to the image.”
While the two points may seem very different, they originate from the same point, namely photography copyright. I found it interesting that these views varied significantly with my own.
Disclaimer: I am not a lawyer. Indeed I have no legal training. All views expressed are my own. You should do your own research and seek professional advice should you require it. Full disclaimer here.
The idea of copyright was accepted in Berne, Switzerland in 1886 at the Berne Convention for the Protection of Literary and Artistic works, more commonly known as the Berne Convention. The Convention harmonised copyright amongst signatories and required member states to provide strong minimum standards for copyright law, with countries subsequently establishing additional national acts and laws building on it; eg Berne states photography shall be copyrighted for at least 25years after the author’s death. In the UK the Copyright, Designs and Patents Act 1988 lengthened this to until 70years after the author’s death (for the rest of this article I shall be referencing, unless otherwise stated, this UK Act).
Berne introduced the concept that a copyright automatically exists the moment a work is fixed or created and does not require registration. The exception to this, in regards to member states, is the USA who joined on 1st March 1989 who continue to insist that statutory claims and legal fees are available for registered works only. In regards to photography, photography copyright belongs to the photographer as soon as the shutter is pressed; if photographing for a client, the client does not own the copyright rather they’re paying for the photographer’s skill, time and licence. There are exception to this rule, such as work for hire contracts, which state the client and not the photographer own the image copyright.
Photography copyright protects two types of rights; Economic rights allow images to be used for commercial benefit. These are also known as Property rights, based on the concept an image is a piece of property. Separately, Moral rights allow owners to take action and protect their work.
Looking at Point1, Economic rights can be transferred, either by assignment to a new owner either in writing and signed (though verbal can have the same effect in practice) or through licensing which allows third parties to carry out certain, agreed acts.
In the UK, Moral rights can not be transferred and include the right to be identified as the author of a work which applies when the photograph is published (there are of course, exceptions). However Moral rights must be asserted in writing. In practice, this means when a photograph is sent or transmitted it must be accompanied by a statement that this right has been asserted. Inclusion of the copyright symbol, ©, and the photographer’s name and details does not constitute an assertion.
Lastly, a photographer can abandon their rights and leave it free for anyone to use which has given rise to Creative Commons licenses which grants others the right to share, use and build upon the work created by the author. I feel the individual in Point1 was getting transfer and waive mixed up with abandon.
Moving on to Point2. Firstly I disagree that the value of the image had anything to do with the clothing in it. I believe the value is as the situation suggests; it’s a photograph of a band’s lead singer performing live at a music festival. However the inclusion of copyrighted material, such as clothing, has no impact on the author of the work. It may affect the use of the image as without the appropriate release form the photographer will be limited as to where the image can be used or published; eg the lights installed on the Eiffel Tower to illuminate it at night were installed in 1985 and are considered an artistic work and copyrighted. So while you may be able to take an image of the Tower at night, you’ll need the permission of the Société d’Exploitation de la Tour Eiffel in order to offer a licence for use or publication. In this instance use will depend, initially, on what agreement was agreed between Salmeron and the music festival organisers.
Furthermore Salmeron did not explicitly take an image of Thunderball clothing, nor was the clothing deliberately placed to make the image more attractive. He was not taking a product shot of Thunderball items, rather an image of the lead singer who was wearing the clothing, making the inclusion of the clothing incidental and outside the photographer’s control and therefore the image is not an infringement of copyright belonging to someone else. Were Salmeron deliberately taking images of Thunderball clothing and had composed the image around their items then, yes, there would be the argument that he had deliberately incorporated the items into his work and therefore the use would not be incidental.
It is also worth noting the point made about choreography. As stated in Berne, in order for choreography to be protected, it must be ‘fixed’ or recorded in permanent form. A single image does not constitute the range of movements depicted in choreography; rather the whole dance must be detailed, be it in writing or ‘other’ such as pictorial, video and even computer animation.
As the comments show photography copyright inspires debate, often heated. It is unsurprising that hobbyists, who enjoy photography as a pastime, are often ignorant of their rights preferring to shoot rather than spend their free time researching points of law. Equally care must be taken over the meaning and definitions of words and phrasing; it’s all too easy to scan and not fully read correspondence. This post is, in my opinion, merely a starting point for those keen to know more. Go, do your own research, become self informed; understand your rights so as to better protect them and make yourself a better photographer.
Understanding Copyright and Related Rights; World Intellectual Property Organization