Photographs and the law: an original creation or a game of 'snap'? A method of storytelling or an invasion of privacy?


Photography has long been used in artistic and creative works, to capture a moment in time or to use light to tell a story.  Photographic images are also used prolifically on websites, on social media pages, on posters and in sales brochures to create more interest for a reader than words can often do alone. The use of photographs in an artwork or publication can bring an added dimension to a piece but it can also raise legal issues.  Some of these are explored below:

Copyright: Who owns the copyright? Can I use the image?

The Copyright, Designs and Patents Act 1988 ('CDPA'), as amended and as interpreted by case law, provides that a photograph is an 'artistic work' which is capable of copyright protection. The copyright in an image arises automatically when the photograph is created, providing it is an 'original intellectual creation'.  

The general rule is that the person who took the photograph is the author and the owner of the copyright in the image.  That is not always the case though.  For example, if one person has set up and composed the subject matter of the photograph but the camera button is pressed at a specified moment by another person, who has no other role, it is likely to be the first person who is the author and owner of the copyright in that image.  Likewise, if a photograph is taken by someone in the course of their employment, the employer is likely to be the first owner of copyright in the image, unless there is an agreement between them that says otherwise.  

The CDPA came into force in August 1989 and since then, the general rule is that copyright in artistic works created after that date lasts for 70 years from the end of the calendar year in which the original creator dies. After that time, the copyright expires. 

Where you would like to reproduce an image protected by copyright, for example in a sales brochure or online, it is generally necessary to seek permission from the copyright owner before doing so.  There are certain exceptions to this, for example where the reproduction is covered by one of the fair dealing defences set out in the CDPA, or where there is incidental inclusion in an artistic work.  However, in the absence of permission from the copyright owner and where the reproduction does not fall within one of the permitted exceptions, there is a risk of legal proceedings for copyright infringement being commenced. 

Privacy: Does anyone have a reasonable expectation of privacy in the image I have taken?

Where a photograph contains images of people, privacy issues could also arise.  This will depend upon the circumstances in which the photograph was taken, such as whether the individuals are identifiable in the image, whether the photograph was taken in a public space or in a location where the individuals had a reasonable expectation of privacy, whether the image includes children, and whether consent was obtained from the individuals for their photograph to be taken for the purpose for which the image is then used.  The right to privacy is counter-balanced by the right to freedom of expression, and whether privacy rights prevail will depend on the circumstances.

Data protection: Does the image contain personal data?

Generally speaking, if an image shows an identifiable living person, it will contain personal data and thought will need to be given to whether there is justification to process that personal data.  The Data Protection Act 2018 provides an exemption from certain provisions of the UK General Data Protection Regulation for the processing of personal data for journalistic, academic, artistic or literary purposes.  This is aimed at protecting freedom of expression and is useful for artists.  However, the exemption is subject to certain conditions being met, so may not be available in every situation.

From time to time, other legal issues may also arise, depending on the circumstances. While the use of photographic images is often without any cause for concern, it is worth keeping these points in mind to avoid unwanted issues arising.  

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