Can I claim to be exclusive license owner of my own photos?

'Is it legal', 'can I do this' type questions and discussions.
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surfgatinho
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Can I claim to be exclusive license owner of my own photos?

Post by surfgatinho » Thu Apr 02, 2015 4:43 pm

Hi,

A semi-theoretical question and may be not strictly within the realms of copyright law.

I take photographs as an individual and post them to the website of a limited company of which I am the sole director. Whilst there is no written license or contract these images are intended for exclusive use by my company.

If I had to argue for damages (heaven forbid!) would I legitimately be able to claim that the images were exclusively licensed?

Thanks,
Chris

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AndyJ
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Post by AndyJ » Thu Apr 02, 2015 6:46 pm

Hi Chris,

Happily, I think the question falls entirely within copyright law. There are two answers.

If you are the director of a limited company and also, I assume, its sole employee, then you can invoke section 11(2) of the Copyright Designs and Patents Act so that copyright in any work you create in the course of your employment automatically devolves to the company, thus no licence is required.

Alternatively, as the owner of the company you can elect not to invoke Section 11(2) and retain copyright as your personal property, which is then licensed to the company. A licence does not need to be in writing (although in the real world it is highly advisable that they are) and so you can also determine the nature of the licence. Therefore you could sue in either your personal capacity as owner of the copyright, or as the sole director of the company which holds an exclusive licence in the images. Damages of course will be based on the loss sustained as a result of the infringement, so it might be necessary to determine whether you personally, or the company, suffered to the greater extent.

Looking at a similar issue from another direction, if your company was to be unfortunate enough to be sued for infringement, then it is likely that you, in your personal capacity, would be deemed to be jointly liable along with the legal entity which is the company, since yours would be the directing mind behind the actions (or omissions) of the company.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007

surfgatinho
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Post by surfgatinho » Thu Apr 02, 2015 10:42 pm

Thanks for another great answer Andy.

From what you've said this is actually far more significant than I realised. It would actually be fairly difficult for me personally to prove damages. All my profits are through the company and any paid photographic commissions have always been charged through the company.

Therefore I believe I would have a better case for damages through the company.


I've just downloaded a PDF of the 1988 Copyright Act which I will be reading through over the next week or so...

Thanks again,
Chris

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AndyJ
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Post by AndyJ » Fri Apr 03, 2015 8:46 am

Hi Chris,
I'm not sure where you found the pdf of the CDPA, but a word of warning. The Act has been amended many times over the past 27 years. Furthermore some amendments which have been approved by Parliament are not yet in force. The most accurate source is the www.legislation.gov.uk/ site. As you will see, even that is not fully up to date, but at least you get a warning for each relevant section where there are changes pending and a link to the statute or statutory instrument which contains the change.
A good example is section 52. The Enterprise and Regulatory Reform Act 2013 authorised the repeal this section, but it was not until recently that the SI was published, announcing the date of the repeal coming into force, which is 6 April 2015. All this detail would not be readily apparent in a pdf that did not contain the relevant hyperlinks to other sources.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007

surfgatinho
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Post by surfgatinho » Fri Apr 03, 2015 9:28 am

The PDF is from the www.legislation.gov.uk site:
http://www.legislation.gov.uk/ukpga/198 ... 048_en.pdf

It says it was amended in 2003, so I guess it would be advisable to cross reference the sections with the 'live' version.

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