HM Insights

Why having or being in a photograph doesn't mean you own its copyright

A failed claim against Rod Stewart for use of a photograph as part of a video used at one of his concerts highlights the rights of photographers to the copyright in the images they create and the distinction between ownership of a physical copy of a photograph and the copyright in it.

In 2015, a photograph of Sir Rod Stewart with an ex-girlfriend taken in the 1960s was used on a video backdrop at BBC2's Live in Hyde Park Concert during his performance. Sir Rod had been given a copy of the photograph by his former school friend, Christopher Southwood, who had taken it.

An agency claimed they held the copyright in the photograph and were able to show that there had been a written transfer of the rights in Mr Southwood's entire collection of Rod Stewart photographs to the agency in 2004. That was sufficient to show that the agency owned the copyright in Mr Southwood's collection and, as copyright owners, they could prevent unauthorised use of the photograph unless they had given their permission – they claimed that no permission had been given either by them or by Mr Southwood for any "commercial use".

While the court accepted that Mr Southwood had transferred his rights in his collection to the agency, their claim failed only because they could not establish that the particular photograph in question was part of the collection and, therefore, was included within the rights they had acquired.

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Important legal points around copyright

The case raises a number of points:

  • The owner of copyright in a photograph is the photographer, not the subject of the photograph or the owner of the physical photograph itself;
  • Copyright continues after death, in fact the current period of copyright in a photograph lasts for 70 years after the death of the photographer
  • Copyright can be transferred, as was done here to the agency, but the transfer should be in writing and if possible identify the individual items;
  • Owning a physical copy of a photograph, or indeed any other work, including a painting, does not give the owner of that physical copy any rights in the copyright, even if they are the subject of the photograph or they commission it.

The assumption would be that Sir Rod, in owning the photograph, had the right to use it for his personal use. Had the agency been able to establish that the photograph was part of the collection and so that they owned the copyright, Sir Rod would have had to argue that by providing him with the photograph in the first place, Mr Southwood, although he retained copyright, had granted him some form of consent or licence to use the photograph other than as a personal memento.

What can you do with a copy of a photograph you have in your possession?

Such a scenario is not unusual – people often receive copy of a photograph in which they or a member of their family will appear – indeed at this time of year there will be many graduation photographs taken. For most, the photograph would probably be of little interest to people outside the direct family. But if the individual in the photograph is, or becomes, well-known, the photograph may be of wider interest. So if you do have a photograph of someone famous what can you do with it? Unless you receive a written consent, the assumed position would be that you can do nothing with it other than keep it for your personal use. But in this internet age, what is "personal use"? Would it be wrong to post it on Facebook? Isn't that simply showing it to others as you would for a physical copy?

The general assumption is yes, provided you do not receive any financial or similar benefit for doing so. But if you look to sell the photograph to a newspaper, you are clearly benefitting. You also have to consider the privacy of the subject of the photograph – we are not told how Sir Rod's ex-girlfriend felt about the photograph being used in the backdrop.

And there are wider arguments over what is "personal use". Sir Rod might have argued that he did not receive any direct benefit from the photograph being used as the backdrop – his fee (whatever it might have been) would have been for appearing at the concert, not for providing the video backdrop which was just an incidental use (the photograph appeared for only 8 seconds) and not for commercial gain.

Whether such arguments would have been raised and upheld, is unknown – but the case highlights that having possession of a photograph, print or digital, does not mean you have the right to use it commercially, however famous the subject.

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