Who owns copyright in an image

Going right back to the basics, who owns copyright in an image.? I hope I can dispel some of the myths and misconceptions about copyright ownership. Under the United Kingdom Copyright Designs and Patents Act 1988 (CDPA 1988), the person who creates an image, the photographer or creator, will generally be the first owner of the copyright.  However, it may depend on who took the photos and in what circumstances.  Here are some of the most common situations:

The Employed Photographer
If the photos were created as part of the photographer’s employment in the course of his/her employment, the employer will generally be the first owner of the copyright unless there is an agreement to the contrary.

The Freelance Photographer
A freelance photographer working on commission is the first owner of the copyright in their images, unless there is an agreement to the contrary.

On Assignment
The photographer may assign the copyright to a third party in an agreement granting ownership to that party.  For example, this could be under a “work for hire” agreement where the photographer is deemed an employee for the duration of the assignment.

The Assistant Photographer
In a situation where the photographer’s assistant actually presses the shutter, but the photographer owns the camera equipment and has made the artistic and creative choices in arranging the composition, lighting, choice of film, film format and lens, focuses the lens, and directs the assistant to to press the shutter at a moment of their choosing; the photographer could be deemed the owner of the copyright.

The Art Director
In circumstances where another person such as an art director makes the artistic and creative choices arranging the composition, decides on the format, film, lens, etc and sites the photographer, giving directions when to press the shutter; it is likely that there will be joint authorship between the art director and the photographer whose input other than pressing the shutter can be focusing the lens, framing the composition, making a choice of lens, shooting angles and apertures which is sufficient to contribute to the creative process; subject to an agreement to the contrary.

The Photo Booth
Next is what can be considered a trick question. Who owns the copyright to photographs automatically taken in a photo booth? The person concerned  pose themselves using the reflective glass as a guide, arrange their position, their expression, angle of head/body, select the use of a curtain backdrop or not, and pay the fee or insert coins necessary to activate the automated clicking of the shutter.  Answer: The author is deemed to be the person by whom the arrangements necessary for the creation of the photographs are undertaken. (s9(3) CDPA 1988).

Computer/AI generated photographs
Which brings us to the issue of computer generated, or AI generated photographs. The 1988 Act defines an author as the person who creates the photograph as an original work involving a degree of skill, labour and judgment; therefore if a machine creates a photograph; under current legislation, a machine cannot own copyright. The owner of the copyright will be the person by whom the arrangements necessary for the creation of the photographs are undertaken.

Animals and non-humans
And finally, on the same topic, can an animal own copyright?  In 2011, UK wildlife photographer David Slater,  whilst in Indonesia photographing a troop of macaque monkeys, placed his camera on a tripod, made the camera settings and one of the curious monkeys clicked the shutter a few times, and the result was the famous “monkey selfie” photograph.  The photo was published by Wikipedia who claimed it was in the public domain due to animals having no legal rights in UK law and cannot own copyright. Mr Slater tried to have the photo taken down, but it is still listed on Wikipedia as “public domain.” In September 2015, the People for Ethical Treatment of Animals (PETA) sued Mr Slater on behalf of the monkey (which they named Naruto) in California where a book of his photographs (Wildlife Personalities) had been published.  PETA, on behalf of Naruto, asserted copyright over the image claiming that independent autonomous actions by Naruto resulted in original works of authorship.  In January 2016, the case was dismissed due to animals having no legal standing and therefore cannot hold copyright nor sue for copyright infringement.  PETA appealed the dismissal, but before it could be heard, the parties reached an out of court settlement which included Mr Slater paying a percentage of all future royalties in the image(s) to the monkey santuary where Naruto lives. Mr Slater is a British citizen and although the photographs were taken in Indonesia, they were first published in the UK, which satisfies the criteria for copyright protection in s153 CDPA 1988.  In 2014, the US Copyright Office published an opinion concluding that “if it determines that a human being did not create a work … it will refuse to register works produced by nature, animals or plants.” This was followed by a statement from the UK Intellectual Property Office that animals cannot own copyright under UK law.  The CDPA 1988 does not categorically state that the pressing of the camera shutter is a factor which confers ownership; rather it says that the author is the person who “creates” the image.

The issue of who owns the copyright in the monkey selfie is still open to debate – public domain or David Slater.  I leave it to you, dear reader to draw your own conclusion.