Using a Photograph in a Book

[johnstone2008]

Dear all,
I am writing a book and want to use various photos within the book. I have contacted the event organizer and asked them to supply photos of their events and if I have permission. They have all come back and supplied the photo and permission given in writing. I have now been contacted by a photographer of one of the events saying the event organizer had no right to grant permission...

Whose permission must I have? The photographer or the event the photo is of?

Many thanks

[AndyJ]

Hi Johnstone2008,
The photographer will always be the first owner of the copyright in the pictures he takes, unless he is employed to take them as part of his job, in which case his employer becomes the first owner (think of a staff photographer for a local or national newspaper). Someone who commissions a freelance photographer to take pictures, or merely permits the photographs to be taken at an event, would have no claim to the copyright unless it was stipulated in writing beforehand as part of the commissioning or other agreement. In my experience photographers rarely relinquish their copyright if there is a chance they can economically benefit from some further exploitation of their work beyond the original purpose. Instead they license interested parties to use the images for specific purposes or territories or durations, or a mixture of all three (see the fourth question on this page for more details).

My guess would be that in circumstances such as those you describe, the photographer will indeed be the copyright owner, although it is possible that he issued the event organisers a licence to use the image(s), perhaps for publicity at future events. If that is so then it will depend on the terms of the licence whether the photographer has allowed the organisers to issue sub-licences, meaning that they could authorise you to use the pictures, without reference to the photographer. The photographer should be able to clarify the situation.

It is worth saying that if you haven't actually published your book, you are probably not liable for infringement, because at this stage what you have done would probably fall within the exception for research and private study (section 29 of the Copyright Designs and Patents Act). Were you to have gone on to the next stage and published, it would probably be secondary infringement (dealing in copyright works in the course of business) and because you were relying on the authorisation from the event organisers, you would have a defence of honestly believing that the photograph was not an infringing copy (see section 23). However a clever lawyer could easily argue that publishing, even though the image had already been published elsewhere, would amount to primary infringement (contrary to section 18).

In any case, assuming you still wish to use the disputed image(s), there is no point in antagonising the photographer if you need to negotiate a licence with him.

[johnstone2008]

Thank you for reply. The explanation was very useful.

The photo in question, I am not going to use.

So basically what I should do before I publish is go back and contact all 50 event organizers I am writing about and 'triple check' they own the copyright? Most of them have given me the photo and said it is fine, as long as I place it in the book and next to the photo write "photo by...XYZ" and then they are happy.

It was only when this photographer complained that it dawned on me that maybe the people giving me the permission don't realize they don't have the permission to give!

One of the event organizers wrote back that they think they own the copyright as they paid for the photos and don't even remember who took the photo, so they said to say photo by them... in this instance is it ok to use the photo?

Thanks

[AndyJ]

One of the event organizers wrote back that they think they own the copyright as they paid for the photos and don't even remember who took the photo, so they said to say photo by them... in this instance is it ok to use the photo?

As I explained in my earlier reply, it is unlikely that the organizer owns the copyright just because they paid for the images. There would have had to have been a written assignment of copyright for that to be the case, and if that was so, the organisers should still have a record of both the agreement and the photographer's name.
Finding the actual photographer could be difficult if there are no identifying details. If you have been given a copy of the original digital file, then there is a small chance that any metadata embedded in the image may lead you to the photographer. If you have a program such as Photoshop this should show if there is any metadata; failing that, there are a number of free online resources (eg here and here) which allow you to examine any Exif data embedded within a digital image. If that fails, try using a reverse image search engine such as TinEye or GoogleImage to try and locate any other online use of the image, from which it may be possible to trace the photographer. If you still have no luck, you could go down the orphan work licensing route, via the IPO website.
I would seriously urge you not to follow the organiser's advice and credit them as the copyright owner as this would be a second infringement, in this case of the photographer's so-called paternity right, contrary to section 84. It is better to have no attribution than to take the risk of false attribution.

[johnstone2008]

Thank you again.

That's very interesting, that no attribution good sometimes be better.