Many professional photographers have discovered their works being used in the media without license. Often, the use occurs with neither payment nor acknowledgement of the photographer. Although unlicensed media use of a photo can sometimes be legitimate (in narrow circumstances, if authorised by specific parts of the Copyright Act 1994), in many cases the use of the image and the failure to credit the photographer is unlawful.
Copyright exists to protect photographers (and creators in general) and to prevent the unauthorised reproduction or publication of original works.
Copyright in a photograph attaches automatically, without any registration or other step required: In general, every original photo is automatically protected by copyright.
Under the Copyright Act 1994 (the ‘Act’), a photo is considered an ‘artistic work.’ Anyone who wants to reproduce or publish a photo requires permission or a licence from the copyright owner before doing so. This allows the owner to insist upon the payment of a fee for the use of the photo. Where the photo is used without permission, the copyright owner can pursue an action for infringement of copyright.
Fair Dealing Exceptions to Copyright
There are, however, some ‘fair dealing’ exceptions under the Act which permit unlicensed use, including where a photo is used for the purpose of news reporting.
Section 42 of the Act provides that “fair dealing” with a work for the purpose of reporting current events by means of sound recording, film, broadcast or communication work does not infringe copyright. A “communication work” is defined to be a transmission of sounds, visual images, or other information, or a combination of any of those, for reception by members of the public, and includes a broadcast or a cable programme.
The effect of s 42 is that the photo may be used without permission, authorisation or payment of a fee when reporting current events by those particular media (not print media or others).
When assessing whether the use of a photo without permission by the news media is fair, Courts have indicated that ‘fair use is reasonable use’ and what is fair or reasonable will depend upon the circumstances of the particular case. Relevant factors to consider however are:
- The content and context in which the photo is used (i.e. the reporting must be for the public reporting of a current news event, as opposed to entertainment or private commercial purposes);
- The number and extent or repetitiveness of the reproduction;
- The motives of the user; and
- The currency of the events being reported (the events must be current – although in the UK (under a similar provision) the use of photos of Princess Diana and Dodi Fayed departing their hotel just prior to their fatal accident, published 12 months later, did not rule out currency).
The person making the copy must be doing so for the purpose of reporting current events (not for making a copy for another person to use, except in limited circumstances). News reporting extends to sports news and results.
While the fair dealing exception in s42 allows the media to use a photo for the purpose of reporting current events, the exception is limited to reporting by sound, film or communication work. Parliament considered that permitting the media to use a photo without permission for reporting in mediums such as newspapers and magazines could seriously undermine the livelihood of photographers. Therefore, while the televised news may include a photo of a celebrity in a report on current events concerning that celebrity, the same story published in a magazine or newspaper would not have the benefit of the fair dealing exception, and would be unlawful (if unlicensed).
Finally, if a photo has been used by the media in reporting current events, this does not mean that copyright protection has been removed from the photo. Full copyright remains.
By James Carnie, Principal and Jasmine Smart, Solicitor, Clendons
Honorary Solicitors for AIPA & NZIPP
This article by its nature cannot be comprehensive and cannot be relied on by any client as advice. This article is provided to assist readers to identify legal issues on which they should seek legal advice. Please consult the professional staff of Clendons for advice specific to your situation.