We are often asked who owns a photograph - the wedding photographer or the client who commissioned the photos, or whether photos you publish on Facebook can be used by others freely.
Governing laws
In South Africa, the copyright in material - artwork, photos, designs, text etc - is governed by both common law, the Berne Convention (South Africa has been a contracting party since 1974), as well as the Copyright Act of 1978, with subsequent amendments, which codified our law to make it clearer.
Copyright works in South Africa are also then protected in other states who have contracted in to the Berne Convention, and the TRIPS agreement. This latter agreement came into effect on the 1st January 1995 and is the most comprehensive multilateral international agreement on intellectual property rights covering copyright, trademarks, origin claims, industrial design, patents, layout designs of integrated circuits and trade secrets amongst others.
Who is protected ?
In very simple terms the author of any work is protected and remains the owner of the work unless a contract has been entered into where the ownership of the copyright work has been given to someone else, or the author disclaims the rights.
There is a common misconception that publishing a photo on social media like Facebook is a notice that the author is disclaiming the rights to the work. However this is governed, in the case of Facebook, by the contract that each user enters into with Facebook on joining that says:
"You may not share anything that you do not own or have the necessary rights to share". Clearly, by uploading a photo or any other work you have created to Facebook, you are not disclaiming your rights of copyright in that work, nor does Facebook grant to other users the right to uplift that work they do not own and use it for their own purposes, without the express permission of the owner.
Weddings
When you arrange a photoshoot or contract with a wedding photographer to take your wedding photos or video, check carefully the terms of the contract they may send you before you finalise your contract to make sure you understand the rights and obligations being entered into. If there is anything you are unhappy with, the time to renegotiate the terms is beforehand, not afterwards when you want to use the photos and an extra fee is claimed for extending that right to you. This also applies to business artwork or logos you may have commissioned an artist to make for you.
TRIPS Agreement
The TRIPS agreement (the Agreement on Trade-related aspects of Intellectual Property rights) is an international legal agreement between all member nations of the World Trade Organisation (WTO). It covers standards to be maintained, enforcement and dispute settlement procedures.
Copyright Act (South Africa)
The Copyright Act in South Africa can be downloaded here :
https://www.gov.za/sites/default/files/gcis_document/201504/act-98-1978.pdf
Duration of copyright
The period for which a work is copyright generally depends on the type of work concerned but in the case of literary, musical or artistic works it extends for the lifetime of the author plus 50 years from the end of the year of the author's death. In the case of films and photographs it is 50 years from the date they were lawfully made public, or 50 years from the end of the year in which they were made, whichever is earlier.
Mc Naught and Co.
If you want to know more about securing your works or what to do if there is an infringment, please contact us to make an appointment to discuss possible actions.
Further References:
Berne Convention
https://www.wipo.int/treaties/en/ip/berne/
TRIPS agreement