Kenya has seen a great deal of development in the area of photography with the same now considered capable of supporting livelihoods unlike in the past where cameramen were teachers who would only do photography over the weekend and the same wasn’t considered a source of income but more of a hobby. With advancements in technology we now have better equipment capable of telling the proverbial ‘a thousand words’ and much more!
Photographs fall under the protection of copyright law and important to note is the fact that; the basis of copyright lies in the character of the subject matter in issue, i.e. it is the particular expression making up a work which is protected rather than the idea behind it.
A copyright owner therefore would be anyone who creates original works unless the same is transferred to someone else. A photographer contracted to take someone’s portrait will be the owner of the copyright in as much as the person contracting might own a printed copy of the photo.
The Copyright owner enjoys exclusive right and they are the only ones who can give it away. Generally, if a work is created by an employee within the scope of employment, the employer is considered the author/owner of a “work made for hire.” In most situations, an independent contractor, such as a freelance photographer will not be considered an employee, and the copyright to the work will be owned by the photographer.
The copyright act in Kenya does not place so much premium on the artistic quality of works for it to attain Copyright protection which in a great sense provides a big opportunity for photographers to reap some economic gain from their works.
For copyright protection to apply, the artistic work need not be registered as it applies automatically provided that they can demonstrate that sufficient effort has been put in creating the work and giving it an original character and also that the same has been reduced to material form. Unlike in other jurisdictions, the Copyright Act in Kenya provides that non-registration of any copyright work or absence of either formalities shall not bar any claim from the author.
The above provision however fails to acknowledge the advent of technology in which photographs are stored in memory sticks when it makes reference to reduction into material form.
What then becomes the point of entry for photographers?
One needs to understand their entitlement before they can lay claim to it; copyright is utilized in the following ways;
- Reproduction – The copyright owner controls the right of reproduction, which means he or she can determine who can make a copy of the whole or part of a work.
- Modification (derivative works) – The copyright owner holds the exclusive right to modify the original work. This includes the right to make a painting from a photograph, or a collage from several different photographs or images. Even if derivative work is extremely creative, permission must be obtained from the owner of the original work, unless the defense of fair use applies. Manipulating and combining images in Photoshop or similar computer programs without permission is an example of an unauthorized derivative use.
- Distribution – The copyright owner (or the owners authorized agent) is the only one permitted to distribute copies of the work to the public by sale or other transfer of ownership, such as a licensing agreement. For example, if a publisher wishes to use a photograph in a book, a license must be obtained and, in most cases, a fee negotiated.
The rights as provided for in copyright law must be distinguished from the object itself. For example, a person can buy a photographic print or a painting but they will not own the copyright. In fact a copyright owner can permit a number of people to use his or her works through different licenses. A photo can be used on a book cover and the same time be used on a billboard advertisement or on a website.
There exists however a limitation to the copyright protection within the doctrine known as fair use which in essence permits the use of copyrighted material without authorization to promote criticism, comment, news reporting, teaching (including multiple copies for classroom use). For this doctrine to apply, the court will need to be satisfied about the nature of copyrighted work, the purpose of use, extent of use, effect of use with regards to the commercial exploitation by the owner.
Photo credit: Pixabay.com