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Madness: UK Extends Copyright on Photos of Physical Objects, But You Won’t Believe Who Owns That Right

5576248447_c65265a0ae_bThe Bookseller has a report one of the more ridiculous aspects of UK copyright law:

A legal change made in 2013 to the Copyright, Designs & Patents Act (technically, the repeal of Section 52) is set to reinstate the full term of copyright protection (70 years) to 2D representations of 3D artistic works. Previously the duration of the term was 25 years. This means many images previously free to use would now incur fees, applying to any book stock sold or published after the legal change is implemented.

Now the government has changed the transition period for the new legislation to take effect from five years to six months, following a judicial review brought in the UK by three furniture manufacturers— US-based Knoll, Italy-based Cassina and Switzerland-based Vitra—with the clock ticking for publishers to comply by October 2016.

Leaving aside the issue of arbitrarily extending the copyright on existing works and the fundamental unfairness of the abrupt transition, did you catch the point about who owns the copyright?

To clarify, under UK copyright law, the photo of a copyrighted object is itself copyrighted, and whoever owns the copyright on the object also owns the copyright on the visual "reproduction" of that object.

So if you bought a designer chair, and wanted to publish a photo of said chair, you would have to pay a designer a fee for the "reproduction" of the chair.

Given that a photo cannot serve as a replacement for the object, I don’t see how it can be called a "reproduction".

That’s just nuts, and if you disagree then I would like to invite you over next week so we can discuss it. I’ll serve a "reproduction" of dinner (photos of my lamb ragout are to die for).

Seriously, folks, this law is that absurd, and the abrupt change is going to hurt the book publishing industry.

"It’s had this terrible knock-on effect on publishers who publish 2D images of design objects,” said Natalie Kontarsky, associate director for legal and business affairs at Thames & Hudson. “The government has actually said ‘you are collateral damage’ in a very sanguine, offhand way. The dark end of the spectrum would be to take books out of circulation and have to pulp. Obviously no one wants to look at that. Licensing images retrospectively is likely to be a very expensive prospect—in terms of actual licence fees to rightsholders, working out who actually owns the rights and the cost of getting picture researchers involved and people like me on the legal side… It’s very complex."

And sadly, this madness is spreading to the US.

This UK ruckus reminds me of a similar situation here in the US where a sculpture sued the USPS for using his work, the Korean War Memorial,  on a stamp. The sculptor argued that the photo used for the stamp infringed on the copyright of his original work, the statues.

Here’s the stamp:


The argument sounds crazy on the face of it (the photo was obviously transformative, and this fair use). And while the district court judge ruled against the sculptor, his lawyers convinced the appeals court for the federal circuit to overrule the lower court (Techdirt):

The Federal Circuit has ruled on the appeal and stunningly decided that this isn’t fair use, claiming that it’s not, in fact, transformative. I’m somewhat amazed — as is law professor Peter Friedman in the post linked here. The two works are quite clearly extremely different, but the court felt that since they both were designed to honor soldiers killed in the Korean War, it couldn’t be seen as transformative. The fact that the photographer took hundreds of images before settling on this one apparently didn’t matter. On top of that, the fact that the snow totally changes the character of the image was dismissed by the court as being just "nature’s decision."

And so thanks to a court, the US is encumbered with a copyright law very similar to the nonsense in the UK. Luckily for us, this hasn’t been codified into US law, so there’s a chance that the Supreme Court might inject some sanity into the situation.

Is it any wonder that so many of us have so little respect for copyright law?

image by PugnoM

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puzzled December 7, 2015 um 3:24 pm

And suddenly, billions of personal photographs no longer belong to the photographers…

Nate Hoffelder December 7, 2015 um 3:27 pm

In the UK, they never did.

Doug December 7, 2015 um 4:38 pm

I don’t know about the UK, but in the US the photographer still holds the copyright to the photo. However, holding a copyright just means you have veto power over its reproduction. In particular, it doesn’t mean that you have the right to use it commercially. To do that, you need to have model releases from all recognizable persons in the image and property releases for all protected items in the image.

Note that in the KWVM stamp issue, the courts did *not* find that the photograph itself was infringing and did not find the photographer liable in any way. It was the US Post Office that was found liable, for not having obtained the necessary property release prior to using the photo for commercial purposes.

In the US, at least, "commercial" usage of a photograph roughly means using the photo to promote sales of something other than the photo itself (excluding editorial usage). I’m at a bit of a loss to understand why the sale of stamps to collectors resulted in the major part of the damages award. Those sales strike me as being sales of (copies of) the photo itself rather than sales of postage.

As to what constitutes being "transformative," it seems to me that’s something that the US courts have always had trouble agreeing on. Cariou v Prince was a big case that hinged on what was and wasn’t transformative, and after five years the case was settled out of court, leaving no precedent.

Daniel Vian December 7, 2015 um 6:17 pm

Clearly, a 2D version of a 3D object is a derivative work, no less than a play based on a novel is a derivative work. If the original work is under copyright, the derivative work needs a license–or else it’s an infringement.

Nate Hoffelder December 7, 2015 um 7:29 pm

A photo of a book is a derivative work just like a play?

That analogy makes no sense. The photo, whether it is of a sculpture, book, or other (non-visual) work, doesn’t even come close to serving the same purpose as the original work (pictures excepted). It has been transformed, and thus is covered under fair use.

neuse river sailor December 7, 2015 um 8:42 pm

So if I take a picture of a friend’s boat – who owns the copyright? Me, the photographer? Or my friend, the owner of the boat? Or the original builder of the boat? Or the boat’s designer?

Reminds me of the passage in Martin Mayer’s fine book, "The Builders", in which a New Orleans lawyer was queried as to why he had searched a title only back to 1803. His reply was "Please be advised that in the year 1803 the United States of America acquired the territory of Louisiana from the Republic of France by purchase. The Republic of France acquired title from the Spanish Crown through conquest. The Spanish Crown had originally acquired title by virtue of the discoveries of one Christopher Columbus, sailor, who had been duly authorized to embark upon the voyage of discovery by Isabella, Queen of Spain. Isabella, before granting such authority, had obtained the sanction of His Holiness, the Pope; the Pope is the Vicar on Earth of Jesus Christ; Jesus Christ is the Son and Heir Apparent of God. God made Louisiana."

BP December 8, 2015 um 8:42 am

Think about the thriller authors. There’s a firearm on every cover. Does that mean Beretta, Smith & Wesson, and Walther now own the rights to those photos. Walther could go after every James Bond image ever printed by that logic.

Nate Hoffelder December 8, 2015 um 9:12 am

Or what about a book cover that uses a famous architectural landmark as a backdrop?

fjtorres December 8, 2015 um 10:53 am

Try this one:

Nate Hoffelder December 8, 2015 um 11:08 am

Or, this one:

Doug December 8, 2015 um 12:12 pm

A lot of you folks are over-simplifying and coming to the wrong conclusion.

Since March 1, 1989 in the US, when you take a picture, you automatically hold the copyright unless you’ve signed some contract to the contrary. (This makes for messiness when you hand the camera to someone else to take a picture of you, because *they* took the picture and thus hold the copyright.)

It’s not about copyright of the photo. It’s not about copyright of the photo. It’s not about copyright of the photo. It’s about how you can USE the photo, and the rights of recognizable persons depicted in the photo and of any protected items depicted in the photo.

You can use the photo however you want as long as you don’t use the photo commercially (generally speaking, don’t use the photo to sell something else). Before you can use the photo commercially, you need model releases from all recognizable persons and property releases for all protected items in the photo.

None of this is new. Model releases and property releases have been required for commercial usage for ages.

The photographer of the Korean War Veterans Memorial was in his rights to take the picture. He was in his rights to sell the picture to the Post Office. But the Post Office didn’t have the right to use the picture for the purpose of selling something else: namely, stamps. The Post Office needed to have gotten a property release, which they didn’t.

Daniel Vian December 8, 2015 um 8:35 pm

Where in copyright law does anyone find a statement that copying is legal as long as the copy is not used commercially? Do you think it’s legal to make 1000 copies of a copyrighted bestseller and leave the pile of copies of the street to be picked up by anyone free? Do it and you will be in a great deal of trouble. Or 1000 copies of a copyrighted sculpture. Or 1000 copies of a copyrighted photograph? Even if your work is only derivative, if the original is under copyright, you need a license.

Nate Hoffelder December 9, 2015 um 8:00 am

One, this is a straw man argument.

Two, I have a couple words for you: fair use.

And three, where in copyright law does it say that I can’t find the provisions of copyright law ridiculous?

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