Re-photo

When I was in Poland recently, I attended a meeting about the setting up of the Association of Polish Art Photographers, and my ears pricked up when there support for ‘Photographers’ Rights‘ was mentioned. I was a little disappointed to find out that they were largely concerned about copyright.

Copyright it a battle that photographers won many years ago, and our rights are generally clear and enshrined in international conventions, and even recognised in similar laws in most of those countries that have little truck with international conventions – such as the United States. Of course these are rights that need continual defence against rights grabs both direct by the big corporations and indirectly by them through the promotion of ‘orphan rights‘ and other similar proposals I’ve written about in the past.

Of course photographers often have skirmishes with individual organisations that use our work and somehow neglect to pay for the right to do so, and there are well-publicised cases of photographers who have made many thousands of pounds, often from just a few days of chasing up such abuse. Last year I made several hundred pounds myself, although mostly my work is used without permission by people with no funds to chase.

So copyright is essentially sorted, though vigilance is vital to keep it so. What interests me more are moral rights. Since I keep on coming across photographers who have no idea what moral rights are, I’ll explain them below, but unfortunately I have to start by saying that the UK 1988 Copyright Act, while introducing them, did so more or less to say that most publications – newspapers, magazines, yearbooks etc – could ignore them. News photographs were also specifically excluded from protection under the Act, and they do not exist for work which you did for which you were on a company payroll (but as with copyright will be yours if work was commissioned from you.)

Of course, where you are able to set a contract for the use of your work, such rights can be included in the terms of the contract, and certainly Magnum was set up in part to make sure that this was done.

Most Moral Rights, unlike copyright, also have to be asserted, by means of a suitable statement associated with the work – either on the work itself or in a contract or agreement for the use of the work (see below.) They also attach uniquely to the creator of the work during his/her life. Unlike copyright you cannot assign moral rights – although you can waive them by a written signed statement (read the small print on any contracts carefully, and cross out any such clauses if you can.) But while you are alive, no one else can claim them, whatever you sign. You can assign them in your will – and if you fail to do so, those you have asserted will automatically pass to whoever holds the copyright in your work.

So what are the moral rights that apply to photographers?

• Attribution: the right to be identified as the maker of the work – to have your name clearly shown wherever and whenever the work is used.
• Integrity / No Derogatory Treatment: the right not to have your work treated in a derogatory fashion – for example by cropping, distortion, additions or deletion.
• No False Attribution: this right exists without the need to claim it, and covers the use of your name with work you did not create.

A further moral right which also concerns photographers is that of privacy. This restricts your use of pictures you have been commissioned by persons to produce which are of a personal or domestic nature. If you wish to show or use such commissioned work you should ensure you have written permission to cover your usage – a suitable model release.

IANAL – I’m not a lawyer – and if you want to use law you should take legal advice. But if you simply want to assert your moral rights, a statement such as ‘Peter Marshall asserts his moral rights as the creator of this work according to the Copyrights, Designs and Patents Act, 1988′ is probably sufficient.

Any newspaper will of course provide copious examples of photographs were the moral rights of photographers are ignored (and of course even though the law does not make them enforceable, moral rights still exist.) I’d like to see a concerted effort by photographers to get all publications to recognise at least some of the moral rights of the people whose pictures they use.

We should start by demanding attribution. When dealing directly with publications I always do so; some photographers I know have a policy of asking for a payment of twice there normal rate if work is not attributed.

I’d also like to see a campaign to attack a different mode of false attribution, where images taken by photographers are credited simply to agencies. Getty, Corbis, Reuters, Alamy etc never took a photograph, and, except with older work where the name of the photographer was not recorded, I’d like to see the photographer’s name always given along with the agency.