Copyright

Copyright

Copyright can subsist in an original photograph, i.e. a recording of light or other radiation on any medium on which an image is produced or from which an image by any means be produced, and which is not part of a film. Whilst photographs are classified as artistic works, the subsistence of copyright does not depend on artistic merit. The owner of the copyright in the photograph is the photographer – the person who creates it,^[ by default. However, where a photograph is taken by an employee in the course of employment, the first owner of the copyright is the employer, unless there is an agreement to the contrary.

Copyright which subsists in a photograph protects not merely the photographer from direct copying of his work, but also from indirect copying to reproduce his work, where a substantial part of his work has been copied.

Copyright in a photograph lasts for 70 years from the end of the year in which the photographer dies. A consequence of this lengthy period of existence of the copyright is that many family photographs which have no market value, but significant emotional value, remain subject to copyright, even when the original photographer cannot be traced, has given up photography, or died (a problem known as copyright orphan). In the absence of a licence, it will be an infringement of copyright in the photographs to copy them. As such, scanning old family photographs to a digital file for personal use is prima facie an infringement of copyright.

Certain photographs may not be protected by copyright. Section 171(3) of the Copyright, Designs and Patents Act 1988 gives courts jurisdiction to refrain from enforcing the copyright which subsists in works on the grounds of public interest. For example, patent diagrams are held to be in the public domain, and are thus not subject to copyright.