Copyright claims involving ownership and infringement are becoming rife in modern times. But, have you ever though about the question of who owns the copyright of a photograph?
In this post, we would be exploring copyright ownership within the art space as relating to photographers and the photographed.
With regard to this issue, it is important to settle a few germane questions. This is particularly beneficial to photographers who are either run solo or are engaged by third party individuals. Let’s take a closer look at them.
Questions To Consider On The Copyright Of A Photograph
The following are questions to consider when it comes to copyright of a photograph:
Who ordinarily owns the copyright?
Is it the person whose photograph is taken or the photographer who takes the photo?
Or where a third party is involved, is it the third party employer?
Which Act serves as lead regulatory instrument on copyright matters?
What The Copyright Act Says On The Copyright Of A Photograph
The lead regulatory instrument on all copyright matters is the Copyright Act 2023 (repealing the Copyright Act 2004).
The Copyright Act recognizes photographs as a copyrightable work. However, this requires that originality and fixation are
Ordinarily, copyright in photography belongs to the author of the work. An author is the creator of the original expression in a work and consequently, the owner of copyright.
Here, the author – the photographer – owns the copyright.
However, there are instances where the copyright ownership of the photograph would transfer to the Client, that is, the photographed. In this case, parties may contract with each other for the copyright in the photograph to vest on a particular party.
However, where a photographer is under employment and is acting in the course of employment. Who does the copyright vest on? The Photographer? The Photographed? Or the third party employer?
With respect to the above, the Copyright Act 2023 introduced a few innovations relevant to this discourse.
Innovations In Copyright Act 2023
Under the new law, photographers contracted for services or under employment by a government ministry, department, agency, or a prescribed international or inter governmental organization, would have the copyright in all their photographs vested in such bodies, subject to any contractual arrangements between the parties.
Furthermore, where a photographer is commissioned by a person for private and domestic purposes, such persons are conferred with non exclusive licenses to exploit such photographs for non-commercial purposes. Importantly, such persons are also able to restrict the publication, exhibition, broadcast and distribution of the photographs to the public. These are however subject to contrary agreements made between the parties.
With respect to collective works, however, copyright in such works shall vest in persons on whose initiative or direction the works were created. Regardless, authors of such works shall have the right to exploit these works independent on of the right in the collective work.
It appears there is a deviation from the former legal regime on copyright matters affecting photographers. It is important to note that the law is a bit unclear on copyright ownership involved in an employment relationship, and so it is vital that parties involved document very clearly their arrangements to forestall copyright ownership issues that may arise in the future.
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References
2 https://www.google.com/url?sa=t&source=web&rct=j&url=https://www.lawglobalhub.com/copyright-protection-in-nigeria/&ved=2ahUKEwjgwoLol6T-AhXEVqQEHTSlDlQQFnoECCcQAQ&usg=AOvVaw0Dy2LJYee23DzGCSg8t9hA accessed on April 12 2023
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