Photo by Markus Winkler on Unsplash
Louis-THE-lawyer's COPYRIGHT SERIES: inset #5 photographs - ‘a picture tells a thousand words’ …… or does it? – rights & obligations of the subject (part 1)
The tourism industry relies heavily on photographs to promote and sell its products and services. We all know the impact of a 4x2 meter picture of a white, white beach with swaying palm trees in a travel agents window display on a passerby! Chances are you’ll make a sharp left into the shop, money or no money, and enquire into this destination.
As I always say: ‘There is the sexy stuff (as above) and then there is the not so sexy stuff i.e. the legal issues such as T&C and copyright’. One of the ongoing challenges for the tourism and marketing fraternity is sourcing and using photographs and images without paying an arm and a leg. Conversely there’s the photographer who more than likely makes a living from selling these photographs. I’ll deal with the former in this article and with the latter in my next insert.
So let’s start with one aspect of the ‘not so sexy stuff’ and discuss copyright. It is a form of intellectual property (‘IP’), the others being trademarks, design, patents and trade secrets. As with trademarks you may acquire certain rights without registration but unlike trademarks there is no copyright register in South Africa.
As explained in my preceding inserts on my copyright series, it vests automatically the minute a concept (Known in the case of photographs as ‘an artistic work’) is recorded in physical form.
However if the photographer has been engaged and briefed to take the photograph(s) and paid for his/her efforts, the copyright will vest in the party who so engaged him/her, UNLESS there is an agreement to the contrary. The same principle applies to an employee taking photos on behalf of his employer in the course and scope of this/her employment, subject to the terms and conditions of the employment contract - I am sure you are all aware of the Vodacom ‘Please call me’ saga.
There is a concept known as ‘fair use’ i.e. publishing images for purposes such criticism, satire, news reporting, teaching, research. Such applications do not require the permission of the photographer or the person whose image has been used, viz. photographs of politicians.
Aspects that will determine whether the use of an image was fair include the following:
- Purpose e.g. educational, nonprofit
- Nature of use e.g. public content
- Amount and substantiality used e.g. small piece of image; thumb nail
- Market effect i.e. you could not have purchased or licensed the copyright work
Commercial use is a totally different story, both as far as the photographer and the person whose image it is concerned. Such use includes e.g. selling it to a stock photo agency or creating an advertising campaign.
As far as the person whose image (including ‘identifiable facets of person’s identity’) it is is concerned, it does not matter whether the photo was taken in a public space and even if the person is a celebrity.
Taking of a photo of an individual gives rise to a number of issues:
If the photograph is taken in a public space the default situation is that you do not need permission.
However if there is any possibility of privacy i.e. a question of whether the location is in fact public and one where privacy is expected or reasonably presumed e.g. a private home, workplace, gym or properties that are privately owned e.g. casinos and shopping malls it is a different scenario and permission comes into the equation. However the law is vague in this regard and it seems that sun tanning on your Sea Point veranda is not quite the same as sitting in your dining room, sliding doors open with a vista of the sea
The latter is also linked to what is called ‘secret or covert photography’ i.e. when the individual is not aware if his/her photograph being taken.
Once taken the next question is use thereof – simply posting it on e.g. Instagram is one thing but, as mentioned, once commercial use is intended, despite the photographer owning the copyright, permission of the subject comes into the fray and is advisable in order to avoid some of the issues mentioned above . Privacy protection includes any identifiable facet of your identity and that includes your image and distributing your image amounts to ‘processing’ as defined in terms of The Protection of Personal Information Act, Act #4/2013 (‘POPIA’). The latter also has special provisions pertaining to minors and parental/guardian consent is required (More detail to follow).
There are in addition further requirements regarding the use of your image i.e. the publication must not be used in a context that states or implies anything untoward or untrue about or misrepresents you as this may give rise to a libel action.
I will address more issues in the above vein in my next insert
Aspects of the above is with acknowledgement of the following:
https://www.rivaliq.com/blog/guide-copyright-fair-use-laws-online-images/
© ADV LOUIS NEL
LOUIS-THE-LAWYER
AUGUST 19 2024
Inset #4 (1)Ttransfer (include moral right), (2) Licence & (3) Ideas
Copyright can be transferred by the author to third parties. Such transfer is embodied in a written, signed cession and assignment agreement (‘Deed of Assignment’) and can also be reflected in a testamentary disposition (Section 23 of the Act). The parameters of such an assignment e.g. to a publisher is circumscribed in such a Deed of Assignment and can include for example whether it is of a temporary or permanent nature and the country or geographical area.
The assignor must warrant the originality of the work and it must reflect an unequivocal intention of the assignor to transfer and the assignee to acquire the copyright.
Despite such assignment, the issue of the moral rights of the author have to be borne in mind. It means that the author retains the right to claim the authorship and that gives the author the right to object to any distortion or modification of the work if such action may be prejudicial to the honour or reputation to the author (Section 20 of the Act). Exclusions in this regard is with respect to cinematograph film, television broadcast or a computer program – in these cases the licensor is allowed to make modifications that are required on technical grounds or for the purposes of commercial exploitation of the work. However the author can waive this moral right
Copyright can also be licensed to a licensee for royalties. It is important to note that as with assignment, a license can be exclusive which will preclude anyone else, including the author from using the work. Such license agreement must meet the same requirements discussed for assignment above e.g. must be in writing and signed by the licensor. It can also be non-exclusive in which event the owner can continue exploiting the work and may grant more than one license.
A question that is often asked is ‘Is there copyright in an idea’? You may recall the following from my 1st insert: Copyright protection is automatic the minute that an original creative work takes a tangible form – this means that until you have reduced your idea to a ‘tangible form’ it enjoys no copyright, not to forget that it must be original and reflect a degree of creativity. The next related question is what is meant by ‘tangible form’? It means one or more of the following:
- written down, recorded, painted or designed
- graphic form, on a computer disk or other medium, or otherwise stored in or available through electronic or other form
- a physical or tangible product that does exist: recorded, filmed or captured electronically.
More about photography and material sourced from the internet in the next insert
Aspects of the above is with acknowledgement of the following:
https://study.com/academy/lesson/what-are-copyright-laws-definition-lesson-quiz.html - D M kisch/Kisch Inc/https:/insider.com/dictionary/tangible-form; https://www.lexology.com/library/detail
© ADV LOUIS NEL
LOUIS-THE-LAWYER
JUNE 27 2024
Inset #3 Infringements and Remedies
PROTECTION
The primary protection afforded the holder of the copyright is found in the Copyright Act, Act 78 of 1978 as amended (see my 1st insert)(‘Act’). This protection is extended to foreign trade marks as South Africa is a signatory to the Berne Convention and the World Trade Organization (‘WTO’) Agreement and the Agreement on Trade Related aspects of Intellectual Property Rights (‘TRIPS’). It means that South Africa must afford works emanating from countries that are listed In the schedules to these agreements, the same protection it affords South African works.
WHAT CONSTITUTES AN INFRINGEMENT?
An infringement can be direct or indirect – the former occurs when a person, without the consent of the owner, does anything that is reserved for the owner. Such exploitation differs in each of the categories (See my 1st insert) and includes copying, reproducing, adapting, performing, etc. and may pertain to the entire work or a substantial part thereof.
Indirect infringement comprises e.g. the selling, letting, offering for sale and distributing infringing copies.
WHEN IS DOES AN ACTION NOT CONSTITUTE AN INFRINGEMENT?
Fair use - Section 12, of the Act describes fair use of a copyrighted work for the following: Private or domestic use, including research or study; Criticism or review; News reporting
The following factors will have a bearing on assessing whether or not the use of the work amounts to fair use or not:
- The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
- The nature of the copyrighted work
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole
- The effect of the use upon the potential market for, or value of, the copyrighted work
Licensing – actions taken by third party can be legitimized by the owner granting the third party user a licence
Finally it should be noted that it is possible that it is not an infringement when a substantially similar work is independently created.
WHAT STATUTORY FINES APPLY?
The Copyright Act also makes provision for criminal penalties - a fine (a maximum of R5 000 per infringement) and/or imprisonment of up to 3 years for a first conviction. The maximum fine and/or imprisonment penalty for a second conviction is R10 000 and/or 5 years.
WHAT CAN A COPYRIGHT HOLDER DO/REMEDIES ARE AVAILABLE?
An injunction can be applied for – with this remedy the applicant seeks to prevent a person from doing a particular thing or demands a person to do a particular thing and it can be interim and/or final.
Damages can be applied for but will not be awarded if the alleged infringement is in fact innocent i.e. if the defendant can prove that he/she was not or could not have been aware of the copyright and/or conversely the applicant can prove that reasonable grounds existed for the defendant to suspect the steps taken by the defendant would amount to an infringement of the copyright. Hence my comments about an adequate copyright notice (See my 2nd insert)
Additional damages of a punitive and/or aggravated nature may be awarded in certain circumstances e.g. if the infringement is flagrant
An account of profits is an alternative remedy to damages. An account of profits provides for the applicant to recover a sum which represents that proportion of the respondent’s profits that was fairly attributable to the infringement of the applicant’s copyright.
PLAGIARISM
Here’s a useful explanation used by UNISA: Ethics and the ethical use of information is of critical importance and a failure to do so amounts to plagiarism and fraud which can result in expulsion and can impact on the students career.
Note that as illustrated below, the primary sphere of censure applicable to plagiarism is ethics and morals whereas a copyright infringement is subject to criminal sanction and it is only when the plagiarism amounts to a copyright infringement that a crime has been committed.
The differences between plagiarism and a copyright infringement can differ as well as overlap as the following will illustrate:
Plagiarism but not a copyright infringement: A student uses a minor extract from a publication without acknowledgement of the author. This may amount to plagiarism as the impression is created that the originator is the student but it may not amount to a copyright infringement as the extent of copying is minor and unlikely to have an adverse commercial impact on the author
Copyright Infringement but not plagiarism: The extract used by the student nature is substantial and despite the acknowledgement of the author, the quantum of copying is so material that permission would be a prerequisite
Both plagiarism and copyright infringement: The work copied by the student is verbatim and presented as the student’s own work without any acknowledgement of or permission the author
More about transfer and licensing in the next insert
Aspects of the above is with acknowledgement of the following:
https://copyrightalliance.org/education/copyright-law-explained/copyright-owners-rights/copyright-exclusive-rights/https://wikijuris.net/ausip/copyrightremedies/https://libguides.unisa.ac.za/research-support/plagiarism#:text D M Kisch/Kish IPhttps://irsc.libguides.com/copyright/fairuse; https://copyrightalliance.org/differences-copyright-infringement-plagiarism/
© ADV LOUIS NEL
LOUIS-THE-LAWYER
MAY 25 2024
Inset #2 - Rights & Notice
I addressed in my first article in this series certain aspects of copyright such as what it is, categories, duration and ownership. Copyright of course is a form of intellectual property, the others being trademarks, patents and trade secrets.
What are the rights of the copyright owner (AKA the author or creator of the original creative material or work)? The rights in a nutshell comprise the exclusive right of the owner to use, duplicate and control the copying, distribution, adaption, display and performance thereof. Once a copyright expires, the copyrighted item becomes public domain.
This right pertains to the control of the following:
The reproduction of the work: Examples of reproduction are cutting and pasting a document or parts thereof into an e-mail, photocopying, scanning, loading movies and copying material from the internet. Failing to obtain the consent of or acknowledging the owner can amount to a copyright infringement. It is one of the key rights of the owner.
The making of derivative works: This pertains to the modification or adaptation of the work into new works. Examples are annotating, editing, translating, modifying or making other types of changes to the work and can apply to such activities as translating a book or transforming a novel or screenplay into a motion picture.
The distribution of the work: This includes e.g. sale or rental, whether it is done by someone who is not authorised or, if authorised, the copies distributed are unauthorized.
The public performance of the work: This applies to (as defined) e.g. literary works, musical works and movies and pertains not only to the performance per se but also the manner of performance. The concept ‘public’ excludes a group of close friends and family.
The public display of the work: This applies to (as defined) e.g. literary works, musical works, pictorial and sculptural works. ‘Public’ – the public performance exclusion mentioned above applies but the following is an example of what amounts to an infringement i.e. the use of a photograph on a website
How does the owner identify copyright and what is the purpose? This is done by the use of the word ‘Copyright’ and/or the symbol © together with the name of the owner and the date of creation. The purpose is to ‘warn’ third parties and is also of great value if the owner were to pursue infringement and endeavour to prove and claim damages. If such ‘warning’ is absent, the third party may claim/raise the defense that it was not aware or that there were grounds to presume that copyright vested in the work or phrase. It can also assist the owner who can argue that the onus rests with the third party.
More about transfer, infringement, damages & fines in the next insert
Aspects of the above is with acknowledgement of the following:
https://www.investopedia.com/terms/c/copyright.asp; https://study.com/academy/lesson/what-are-copyright-laws-definition-lesson-quiz.html; D M Kisch/Kish IP & Wikipedia
Inset #1 - What is copyright?
DEFINITION
Copyright is a legal term used to describe the rights that creators have over their works that are eligible for copyright as defined in the Copyright Act.
COPYRIGHT ACT
Act 78 of 1978 as amended (‘Act’) regulates copyright in South Africa and protects the following works: literary works, musical works, artistic works, cinematograph film works, sound recordings, broadcasts, programme-carrying signals, published editions and computer programs.
PROTECTION IS AUTOMATIC
The creator doesn’t have to register copyright for it to be protected as is the case with patents and trademarks (other than acquired distinctiveness). Copyright protection is automatic the minute that an original creative work takes a tangible form. Copyright applies to works that have some form of creativity embedded. As such a mere list of facts or data cannot be copyright protected. A grocery list for instance, is not a creative act and thus cannot be protected.
There are however certain requirements namely:
- The work must be original and creative.
- It must fall in one of the categories contained in the Act
- It must be original and as a result of the author’s independent, labour skill and effort
- It must be reduced to material form
- The author must be a ‘qualified person’e. a natural person who is resident or domiciled in South Africa (‘SA’) or in any country where the Act applies OR a juristic person incorporated in SA or in any country where the Act applies
CATEGORIES AS PER THE ACT
- ‘Literary works’include e.g. novels, poems, dramatic works, lectures, speeches, cinematography
- ‘Artistic works’include e.g. paintings, sculptures, photographs
- ‘Drawings’of a technical nature
- Computer programs
- Musical works
- Sound recordings
- Broadcasts
DURATION
- Literary, artistic (excluding photographs) & musical works: life of author + 50 years from date of death
- Computer programs, photographs and cinematography: 50 years from date it is lawfully made available to the public or 1stpublished, whichever is longest
- Sound recordings and broadcasts: 50 years from the end of the year in which 1stbroadcast takes place
- Published editions: 50 years from end of the year in which edition is 1stpublished
WHO IS THE OWNER?
The owner is the author of the work and the Act defines the author as follows:
- Literary, musical & artistic work – the one who first makes or creates the work
- Photograph – the one responsible for the composition
- Cinematograph film or sound recording – the person who makes the arrangements
- Broadcast – first broadcaster
- Computer program – the person who controls the making
- Where the above is generated by a computer - the person who makes the arrangements
- Published edition – the publisher
There are important exceptions to the above:
- Literary & artistic work – where this has been done as part of the author’s employment with a newspaper or magazine then the proprietor thereof will be the owner
- A party may commission someone to take a photograph, paint a portrait, make a cinematograph film or make a sound recording and if the party pays such person, the party will be the owner
- Generally speaking the copyright in any work done by an employee in the course and scope of his/her employment is owned by the employer
Note that any of the above can be altered by agreed contractual terms
Aspects of the above is with acknowledgement of the following:
https://www.investopedia.com/terms/c/copyright.asp; https://study.com/academy/lesson/what-are-copyright-laws-definition-lesson-quiz.html; D M Kisch/Kish IP & Wikipedia
© ADV LOUIS NEL
LOUIS-THE-LAWYER
APRIL 27 2024
DISCLAIMER - Each case depends on its own facts & merits - the above does not constitute advice - independent advice should be obtained in all instances
LOUIS’ LEGAL ADVICE CLUB (‘LAC’) – obtaining legal advice & guidance can be quite costly (See below*) hence my LAC via which you can obtain an hour’s legal advice for R750, 00 per month once you’ve joined AND the fee for additional hours is R1850 per hour! Furthermore you are dealing with a lawyer who has been in tourism since 1982!
* The AVERAGE hourly rate is R2700 (https://www.myggsa.co.za/how-much-do-lawyers-charge-per-hour-in-south-africa/