who owns copyright of photo of my painting

anneonimouse · Post by **anneonimouse** » Sat Oct 16, 2010 8:56 pm

Hi,

if I pay someone to take a photograph of my painting so I can have giclee prints from it made, who owns the copyright of the photograph?

some printing companies if the canvas painting is too big to have it scanned they will photograph it instead.

thanks in advance for any advice you can give on this.

AndyJ · Post by **AndyJ** » Sun Oct 17, 2010 12:17 am

A photograph of your painting is a copy under the terms of the Copyright, Designs and Patents Act 1988, and if it was done without your permission, it would be an infringement of your rights. But because the photographer is deemed to have exercised skill and creativity in taking the photograph, in most cases he will own the copyright in the photographic image. There are certain conditions, where for industrial purposes such as making lithographic plates for printing, no copyright exists in the intermediate materials which maybe created.
So in the situation that you mention, you would need to make sure that in commissioning the photographer you stipulate that you require the copyright in the photograph to be assigned to you (in writing), or at the very least, the photographer needs to provide you with an exclusive licence which prevents him or anyone else from using that image in any commercial manner, as clearly that would have implicatiions for your ability to exploit your rights in the original painting.
However, if you feel able to do the photography yourself or can give the task to someone who is employed by you and this work forms part of his job description, this would remove that problem.

anneonimouse · Post by **anneonimouse** » Sun Oct 17, 2010 12:27 pm

Hi,

thank you for your fast reply,

I see,

so do you know if I pay someone say a professional photographer to take photos for me does that class as me employing them?

thanks

AndyJ · Post by **AndyJ** » Sun Oct 17, 2010 2:55 pm

No, that is just commissioning them.
For someone to be an employee (for the purposes of Section 11 (2)) they need to be on the payroll, with you paying NI contriutions etc.
"[Section 11] (2) Where a literary, dramatic, musical or artistic work, or a film, is made by an employee in the course of his employment, his employer is the first owner of any copyright in the work subject to any agreement to the contrary."

Section 178: " “employed”, “employee”, “employer”, and “employment” refer to employment under a contract of service or of apprenticeship;"

anneonimouse · Post by **anneonimouse** » Mon Oct 18, 2010 12:01 pm

Ah

ok,

thank you. I will see if they will write something then. can they charge me extra money to sign over the copyright do you know?

AndyJ · Post by **AndyJ** » Mon Oct 18, 2010 1:15 pm

It doesn't need to be a formal contract (although you can download one from here: http://www.own-it.org/contracts/10 if you wish) but it should mention that is an agreement between you and the photographer to assign copyright in exchange for valuable consideration, to you in perpetuity. Both parties should sign the document.
Most professional photographers guard their copyright so this request may lead to an increased fee, but then on the other hand, it is an entirely reasonable thing to request since I would suggest these images would have very little commercial value if the photographer wanted to further exploit them. You also have the option of taking your business elsewhere if the photographer is unreasinable in his demands.
As I mentioned before, it is not essential that the copyright be assigned to you. A licence which gives you full use of the images for as long as you need would suffice, and this should come as part of the commission, so I would not expect an additional charge. A skeleton licence form can be downlaoded for free from the Association of Photographers website: http://home.the-aop.org/Downloads/p13_s ... 3_fileid/5