Copyright: The Photographers Plight

Posted on Oct 15, 2011

Copyright: The Photographers Plight

The Vine Oracle recently chatted to a professional photographer and had occasion to reflect on the treatment meted out to this group by our Copyright law. Apparently freelance photography in South Africa is not the lucrative business it appears to be– quite the contrary.

Copyright is supposed to allow creators of original works to make money by commercialising their works. Copyright is failing freelance photographers on this count. Why you ask?

Remember that copyright comes into being automatically (provided of course the other requirements for subsistence of copyright are present) – registration is not necessary for copyright to exist.

In terms of the South African Copyright Act, 1978 the initial copyright owner is generally the author – who, in the case of a photograph, is the person responsible for the composition(the artistic input) of the photograph. However, there is a critical exception to this:commissioned photographs – the client who commissions and agrees to pay for the taking of a photograph, is the owner of the copyright in that photograph. The freelance photographer has no rights to his work. In this respect the law discriminates against photographers because peer groups like artists, composers and writers do not suffer the same fate. Wherein lies the distinction? Of course, if (and it is a big ‘IF’) the photographer can get the client to agree, they can exclude the operation of the exception so that the photographer owns the copyright in the commissioned photograph.

The problem is not only that the vast majority of professional photographers don’t know what their rights are and therefore don’t protect themselves, but also they simply don’t have the clout to enforce their rights on the publishing and advertising houses and risk not getting any work from them. The law needs to change so that photographers are protected from the outset (which is the case in foreign jurisdictions) and they can have level playing fields with their fellow creative types.

“the law needs to change so that photographers are protected from the outset”

This is yet another example of what the Vine Oracle (among others) has been saying so often over the past few months – South African intellectual property laws need urgent amendment. During the fifteen or so years since the Copyright Act was last meaningfully amended the commercial and technical landscape has changed tremendously and the law is now badly out of kilter with reality. Whatever the position might have been in the past, there is now no justification for commercial photographers to remain downtrodden. A photographer’s work is created in his/her own image and the individual should have dominion over it.

“the law is now badly out of kilter with reality”

The Association of Professional Photographers (Africa) runs an information forum for all the budding and seasoned photographers out there – visit