IP and Photography: Who owns the Click Right?
Presently we live in an age where almost everyone is on one social media platform or the other and communication, using photo or video sharing is by the click of a button. It is essential to know who owns the pictures we so often see, like, share, and repost.
What is Photographic Copyright?
A basic definition of Photographic Copyright is the right which the owner of a photograph has in his/her property, allowing him/her to reproduce, license and sell his/her work (positive rights) and preventing others from copying or using (communicating to the public) his/her work without permission (negative rights). Ultimately, each country would have variations in what they term Photographic Copyright to be depending on their laws. The Berne Convention, however, provides for the minimum requirements which member states are required to meet. In Nigeria (a signatory to the Berne Convention), photographs are eligible for protection under copyright law since they fall under the caption of artistic works section 39 (1) (d) of the Nigerian Copyright Act (NCA) 1990 as amended. Under Nigerian law, Copyright subsists in a photograph upon creation as long as it satisfies the conditions of originality and fixation (Section 1(2) NCA). The copyright in a photograph is usually the property of the photographer unless he assigns it to another person or was hired to take the photograph. Copyright subsists in a photograph for fifty years after the end of the year of first publication.
What rights are protected under the Nigerian Copyright Law?
Section 5(1)(b) of the NCA grants the owner of the work the right to do or authorize the following acts in relation to artistic works:
i. Reproduce the work in any material form,
ii. Publish the work,
iii. include the work in any cinematograph film,
iv. Create an adaptation of the work,
v. Reproduce an adaptation of the work in any material form,
vi. Publish an adaptation of the work.
Can I retouch/alter a picture that is not mine?
If you do not have authorization, retouching/altering a picture is an infringement of the photographer’s copyright in the picture. However, if you have authorization then retouching/altering a picture is permitted to the extent of your authorization. Furthermore, an altered work can be protected in its own right as a derivative work. A derivate work is one, which is created from an original work protected by copyright but is distinctive enough to be different from the original work and is hence protected as a separate work under copyright.
Who owns the Copyright?
Ordinarily, the assumption is that Copyright in a photograph belongs to the person who took the photograph. However, there are some exceptions:
i. An employee in the normal course of duty: Under Employment law, anything created by an employee during working hours and in the normal course of his duty belongs to the employer.
ii. A contract, or commissioning: If someone commissions a photograph the then the copyright in the photograph belongs to the person who commissioned it as an implied or actual contract was in place.
Co-ownership of copyright
In a situation whereby more than one person contributed to the creation of a photograph e.g. one person took the actual photo and another person edited it, both persons would be co-owners of the copyright.
Does the subject of the photograph have any rights in the photograph?
Where a person merely appears in a photograph and is not the main focus, they do not have any rights in the photograph. For example, if someone takes pictures of a beach it would most likely include people. Such persons would not have any rights in the pictures. In New York, taking photographs of people in a public place is legal and can be posted on blogs or websites unless the photographer is being paid for the photograph. Therefore, pictures taken at Lagos Fashion Week of designers, models, and attendees are the property of the photographer and the subjects of the photograph do not have any rights in it. Where the photographer will be paid for the use of the photographs, the consent of the subject is required. Exceptions are newsworthiness and artistic expression.
What happens when you crop out watermarks on a photograph and post it on social media?
A watermark works like a trademark for pictures. You would not remove trademarks from products so why would you remove a watermark from a picture. They both serve as identity markers without which the public would not know where the product/image originates. Removing a watermark from a photo and posting it as yours is an infringement of the owner’s copyright.
Can you post a picture of yourself taken by someone else on social media without their permission?
Depending on the situation surrounding the photograph, you may be able to post it. Where you ask someone to take a picture of you with your own device, then the picture belongs to you but if he/she uses his or her own camera, the picture belongs to the person who took it. In the second instance, posting that picture without permission irrespective of the fact that you are the subject of the photograph is an infringement of the photographer’s copyright.
Do you actually have copyright over the pictures you post on your social media platforms? Yes, pictures posted on a social media platform are covered by copyright. However, social media platforms have licensing agreements, which have been woven into the terms and conditions that a user must sign before using the platform. This allows the social media platform license the photographs and make money from users content without having to ask for permission for every photo they use, and not pay the owners for their photographs.
Do media houses require permission to use a photograph from a social media platform for their news broadcast?
Yes, they require permission. Contrary to popular belief, pictures posted on social media are not free for use by third parties without a license or some form of agreement. The inadvertent license granted to social media platforms when signing up to use their services does not extend to third parties. To use a picture off a social media platform, a media house would have to obtain a license from the owner of the photograph or a sub-license from the social media platform.
Some Basic Facts about Copyright in Nigeria https://nlipw.com/some-basic-facts-about-copyright-in-nigeria/
Copyright in Photography – A Snapshot from Nigeria https://nlipw.com/copyright-in-photography-a-snapshot-from-nigeria/
Social Media and Copyright: Can I Post that Photo? https://www.lexology.com/library/detail.aspx?g=978acb6a-7ccd-4ffc-99b0-798e2f70b795
Who Really Owns Your Photos in Social Media? (Updated 2013 Edition) http://mediashift.org/2013/01/who-really-owns-your-photos-in-social-media-updated-2013-edition025/
Facebook Terms and Conditions: Why You Don't Own Your Online Life http://www.telegraph.co.uk/technology/social-media/9780565/Facebook-terms-and-conditions-why-you-dont-own-your-online-life.html
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