At the BAPLA Picture Buyers’ Fair in London yesterday, I took time off to go to a fascinating and well-attended seminar run by lawyer Nicola Solomon of Finers Stephens Innocent. She is an expert in intellectual property, publishing, media contracts and disputes. Here is the gist of what she said, but any acerbic comments, such as “a very poor precedent”, “breathtaking stupidity”, “how pathetic is that” and so on are all mine, not her opinion.

These are also simply jottings I made during the course of her talk, so you cannot rely on them as definitive statements of fact. If there’s anything here that directly concerns you, or you need professional advice, I suggest you should contact Finers Stephens Innocent. +44 20 7344 7652, nsolomon@fsilaw.co.uk.

Copyright in the UK
For pre-1989 photographs, the copyright holder is the owner of the film. For post-1989, the author (photographer) is the owner. Copyright is automatic, there is no need to register, and it lasts for 70 years after the death of the author. There are some exceptions, for example work created in the course of your employment. However for commissioned photography — external employment — copyright rests with the photographer unless the contract specifically assigns the rights to the commissioner.

Licences not needed
No licence is needed when not using a “substantial part.” That’s the mustard on the side of the plate for the legal profession, because it’s the law that has to decide what constitutes a “substantial part.”
No licence is needed for Fair Use, i.e. a review or criticism. Sufficient credit should be given.

Out of copyright
Old pictures may be out of copyright, but the person who TOOK the photograph of the old picture has copyright of that image. If you breach the copyright, you might
1. Have to pay damages, to the cost of the licence. Not usually a huge amount
2. Receive an injunction to prevent further use
3. Destroy all copies of the item in which the image appears
4. Suffer loss of reputation.
Put together, this could prove seriously damaging to you.
Always try to trace the owner. Try http://tyler.hrc.utexas.edu

Licence to use
Licence to use the image comes from the picture library at the time of purchase, and need not be in writing. It should cover the TERM of the licence, the TERRITORY and the USAGE. Nicola used an analogy: you can sell the freehold of a house, sell part of a house, let out a flat in a house, sell a leasehold, permit use of the kitchen and so on — there are as many, if not more, ways to allocate image usage. Express (meaning specific) licences covering term, territory & usage need to be written down. Implied licences, such as the right to download an image after buying it, need not be written down. A license to use does not grant license to edit, cut, crop or change credit. All photos are copies of something, and the licence for the photo will not cover the underlying image; the object photographed. The picture library only licenses the picture, not the subject.

Incidental Inclusion
“Incidental inclusion” is generally permitted. However in Premier League vs Panini, the League sued a sticker manufacturer for showing footballers wearing shirts with minuscule Premier League logos on their shirts. Clearly the subject and interest of the image was the footballer himself, and Panini argued that the logos were a prime example of “incidental inclusion”. Nevertheless in the Court of Appeal 2003, in a judgement of breathtaking stupidity, the law found in favour of the Premier League. That set a very poor precedent, but there hasn’t been a similar case since. So the next time you run a promotion with sports stars, make sure you get clearance for every badge on the kit. How pathetic is that, I ask.

Sculptures and Buildings
It is not an infringement to photograph a sculpture permanently sited in a public place. It is not well known that the National Trust has no right to stop you using a photograph of a National Trust property. However if you buy an entry ticket from them, you have entered into a contract in which you have agreed not to do this!

Model releases
The safest bet is to get model releases for every person’s picture that you take. Take members of the public wandering around in shopping centres; you can’t use the images commercially. You can’t use the CCTV pictures commercially. Editorial use doesn’t pose anything like the same problem.

Celebrities
You can’t use a celebrity’s image to endorse a product without paying him. Eddie Irvine, the F1 driver, won £25,000 in 2002 from TalkSport, who used an image of him brandishing a mobile phone, photoshopped out the mobile and stuck a radio in instead. Even I feel that that was beyond dodgy.

Ordinary people
Take a photograph of three women enjoying a glass of wine. Add a headline such as “Alcoholism rises among young women” and if those women didn’t consent to that sort of usage the photographer and the picture library could be in deep trouble.

Trademark claims
Trademark is not a copyright, it’s a sign of origin. The Guggenheim Bilbao, the New York Skyline, the Rock & Roll Hall of Fame have all trademarked their buildings. But it means nothing — there’s nothing to stop you using the images editorially. You may get nasty letters but there is little they can do. Be careful with Barbie, however. Her owners Mattel are notoriously litigious. They haven’t yet won a case, but it doesn’t stop them trying.

And remember — Copyright protects skill and labour, not creativity.