Understanding Photography Copyright
The great news is your organisation has found a budget to hire a professional photographer to document its work. Now you need to create a contract and address copyright, which is the legal right for a person or organization to publish or perform a creative product such as a book, film or photograph.
The South African Copyright Act automatically grants photographic copyright to the person responsible for composing the picture, when it is created (no need to register the picture or anything like that). However, there is an exception: a person or organization who commissions a photograph and pays for it becomes the copyright owner of those photographs (see Section 21(1)(c) of the Copyright Act).
This section of the South African Copyright Act is the complete opposite of copyright law in most other countries, where photographers retain the rights to the commissioned images unless they decide to give up those rights. The law does leave some room for photographers to negotiate with people who commission photographs (see Section 21(1)(e) and Section 20). And indeed, in the past few years, some South African photographers have begun pushing back. Some are writing contracts that exclude their work from Section 21(1)(c). Therefore you may find yourself negotiating the copyright arrangement.
If you do find yourself in this position, the photographer likely will offer you one of two options:
- A licensing agreement. This means the photographer retains the copyright and your organization has the right to publish certain images in certain media for a set timeframe. This is much like buying a license to use software: it doesn’t mean you own the software and can alter it and resell it at will; it just means you’re allowed to use it.
- A copyright buyout. This means you pay to buy the copyright from the photographer.
The pro of a licensing agreement is it will be relatively affordable. The con of a copyright licensing agreement is you could be limited to using a certain number of photographs in specific media for a set period of time, usually anywhere from one year to five years. You will have to negotiate and then lay out these copyright terms in the contract, with the price rising or falling based on the copyright agreement’s degree of exclusivity.
The pro of a copyright buyout is you own all rights to publish the photographs in any way you wish in perpetuity. The con of a copyright buyout is it will cost you more money, anywhere from 2x to 5x what you would have paid for a licensing agreement. Also, you will have to keep track of when your licensing agreement expires (the photographer will likely be doing this, too).
As someone who has both freelanced as a photographer and commissioned nonprofit photography (though not in South Africa), I truly understand both sides. Freelancers need to earn a living and nonprofits need to economize and maximize. So, some questions you may ask yourself if you are negotiating copyright for your organization are:
- Do we really need a copyright buyout? Realistically, how long will my organisation publish these photographs? Styles change, technology improves, children grow up, people change jobs. In three years will my organization still want to be pushing the story and photos of the five-year-old (now eight-year-old) saved from hunger because of our programs?
- Does my organisation work with vulnerable populations whose photographs shouldn’t be published elsewhere or in certain contexts? If so, then your organization may want to own the copyright to these images, or – if you end up licensing the photographs from the photographer – you may want to restrict how s/he is allowed to use or sell the photographs.
- Might the photographer be open to a joint copyright ownership? There are many possibilities in this scenario that could end up satisfying both the organization and the photographer.
Creating a copyright agreement in a contract might sound daunting, but it doesn’t have to be. You’ve already begun educating yourself by reading this blog post. A next good step might be discussing the subject within your organisation and deciding what copyright arrangement is ideal for you, but also what you are willing to negotiate. That way you will always know exactly where you stand.