Page 88 - Law and the Media

Copyright
camera owned the copyright in the photograph. Only photographers who used their own
films became copyright owners. A modification applied if the photograph was commis-
sioned. If someone commissioned a photograph and agreed to pay for it, the photograph
produced belonged to the person who commissioned it and not the photographer, no matter
who owned the film. As a result, a freelance photographer using his own film owned the
copyright in photographs taken on the spur of the moment, but he did not own the copyright
in photographs commissioned by another person or a publication.

The CDPA brought ownership of copyright in photographs into line with literary works. The
person who creates the photograph owns the copyright in it. Even if a photographer has been
commissioned or is using someone else’s film, he will be the first owner of copyright. As a
result, if you ask someone to take a photograph of you on holiday, the person who takes the
photograph will become the copyright owner.

The question of copyright ownership in photographs is of fundamental importance to
journalists, particularly those in the world of newspapers and magazines. Only the owner can
give permission to use a photograph. Permission must be obtained from the right person,
whose identity it may not be easy to establish.

In Daily Mail v Daily Express (1987), the Daily Mail bought exclusive rights to wedding
photographs from a husband whose wife was being kept alive on a life-support system until
her child was born. The Mail obtained an injunction to prevent the Daily Express from
publishing the same photographs. The Express argued that the husband and the wife owned
the wedding photographs jointly. It said that because the Mail had only obtained consent
from one joint owner, it was not correct to grant an injunction in respect of the copyright until
the Mail had the consent of both. The court held that the husband and wife did own the
photographs jointly, but upheld the injunction. The court said that it was not clear whether
the wife was clinically dead and therefore incapable of giving or refusing consent. In such
circumstances the Mail was able successfully to argue that it had acquired good title to the
pictures.

3.3.3 Sound recordings, films, broadcasts and cable programmes

The rules concerning ownership of sound recordings, films, broadcasts and cable
programmes were also changed by the CDPA. Under the previous legislation, the rules
concerning ownership of copyright in sound recordings were the same as for photographs.
The owner of the material on which the recording was made or the person who
commissioned it was the owner. Copyright in sound recordings and films is now owned by
the person who makes the arrangements necessary for the making of the recording or film.
This will be the record company or the producer; not the artist or director.

Under the previous legislation, only the BBC or the Independent Broadcasting Authority
could own the copyright in broadcasts. Copyright in broadcasts under the CDPA is now
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