Garbage, the Scottish-American rock band have hit the headlines this week for seeking to use certain photographs without paying, see http://www.nme.com/news/garbage/84227.
The photographs are the work of Pat Pope. Mr Pope had photographed the band on a number of occassions and had, according to the NME article, been paid for that work. However, the band are now looking to release a book covering the band’s history and featuring photographs of them throughout. Accordingly a representative of the band contacted Mr Pope asking that if they could use the photographs in return for a “proper credit” but without paying for the same. Mr Pope refused and went public with an open letter published on the Huffington post site: http://www.huffingtonpost.co.uk/pat-pope/garbage-an-open-letter_b_6993366.html.
So what’s the problem? Have Garbage been stupid (girl) or is Mr Pope push(ing) it (I think I’ve pushed it with the Garbage puns there)?
The basic position under copyright law is that the author, Mr Pope in this instance, is the first owner of the copyright in that photograph. In order to transfer ownership of the copyright there needs to be an assignment of those rights, in order to be effective the assignment must be in writing signed by or on behalf of the assignor (i.e. the author). Merely paying a photographer to take some snaps does not mean that you own the copyright in those photos. It may mean that you have an implied licence to use those photos for certain purposes, which may well have happened in this situation, but it does not give you carte blanche to use the photos as you wish.
Without knowing the detail of the agreement between Mr Pope and the band it is difficult to give any real insight into what the historical payment was for and thus what the band were permitted to do with Mr Pope’s photographs. It is however not hard to envisage a situation whereby the band enlist a photographer to do some press shots for them, or perhaps some shots for an album sleeve (I’m showing my age now), they pay the photographer for the same and thus get a licence (even if it is implied) to use the photographs for that very purpose. They cannot however then go and use the photos for, say, a book. Instead they would need to obtain a further licence from the photographer who, quite rightfully, is likely to hold out for payment, alternatively the band should have considered the issue, and taken an assignment of the photographs, from the outset.
This situation is far from unique to bands, the entertainment industry, or photographs in general. It applies to all copyright works, be they images, works of graphic design, copy, even your website. All of these are copyright works and without an assignment will be owned by the author of those works. If the author is an employee then there is a statutory assumption that the rights are to be owned by the employer, that’s straightforward enough, even so it is only prudent to include suitable wording in your employment contracts. If the author is not an employee then, if you wish to own the copyright in the work, you need to put in place an assignment, if the author will not agree to an assignment then consider the terms upon which you wish to licence the work or simply go elsewhere.