Copyright is a property right which subsists in literary and artistic works that are original. Photographs and Photographic works are protected under the Copyright Act.
Rights of the photographer –
Original works, means works where some skill, judgment and or labour was used in the creation of the work. Since the photographer must exercise some skill in the taking of photographs, photographic works are therefore protected.
Editorial use vastly differs to commercial use. Newspaper articles constitute an exception for reproduction and communication to the public for informatory purposes pursuant to Section 13(a) of the Copyright Act Chapter 82:80. “[When the use has both commercial and non-profit characteristics, the court may consider] whether the alleged infringing use was primarily for public benefit or for private commercial gain.” — MCA, Inc. v. Wilson, 677 F.2d 180, 182 (2d Cir.1981) Editorial use is not considered a use of the person’s image for the photographers own benefit. Editorial use of an image is the use of an image to illustrate something that is newsworthy, cultural or of public interest. This includes news, entertainment, sports, music and other events.
Generally, if there is some relationship between a newsworthy article and the photograph, the use of the photograph will be considered editorial, even if the article is not directly about the subject of the photograph. If the use is editorial, incidental advertising or use of the product containing the editorial image is not considered infringing, such as the sale of a magazine or newspaper with a news image on the cover (https://cdn.ymaws.com/www.csusa.org/resource/resmgr/Chapter_PA/phil_2015_08_06_mats.pdf)
Commercial use benefits the photographer, so a person’s consent is needed to use their image. The person’s consent to use their image is normally documented by a model release (http://www.photoattorney.com/2006/02/commercial-vs-editorial-use-of.html)
Ownership of photographs –
The following should be noted:
1. The original owner of the copyright is the creator/author who has created the work. Therefore the photographer who has taken the photograph is the original owner of copyright in the work.
2. Where a photographer takes photographs during the course of employment, the copyright in the photograph belongs to the employer.
3. There are no general provisions in the Copyright Act relating to the commissioning of works, in other words, contracting someone to do work for you which is not long term employment. Persons and entities should disabuse themselves of the notion that if they have contracted someone to create works, for example a photographic work, that they would automatically own the copyright. The parties should make it quite clear in the terms of their business who should own the Copyright in the work.
4. If a photographer takes a picture of someone in a carnival costume at the mas camp for instance, that person does not own the photograph, the photographer does.
5. The person may be able to negotiate to get an electronic version or print but that does not equate to ownership of the intellectual property unless there is an assignment of the copyright in writing from the photographer to the person, signed by the photographer.
Image rights –
In Trinidad and Tobago, there are no specific laws that deal with image rights and the use of an individual’s image. At the same time, it should be noted that a person has the right to respect for his private and family life. For instance, someone goes into the home of another and takes a photograph of the home owner and then wishes to exploit it for financial gain.
1. One question which is commonly asked around carnival time is whether masqueraders can take photographs of themselves and others and what happens if other people take photographs of the masqueraders. Where an individual is in a public place, there is no legal requirement that the individual’s permission should be obtained prior to taking the photograph.
2. If during carnival, a masquerader’s image appears in a carnival compilation through an accredited photographer (in other words, a photographer who has paid to take photographs for the carnival route) then there is not much the masquerader can do to object, as the photograph was taken by an accredited photographer in a public place.
3. Masqueraders can freely share photographs that they take themselves, provided it is for non-commercial purposes.
4. If the photograph is for commercial purposes and is taken along the Carnival venue, the person must be accredited. Accreditation means an individual, non-transferable and revocable right of access to one or more areas at a Venue for a specified period, solely for the purpose of carrying out the role to be performed by the Accredited Media as specified in the application. In 2014, it was acknowledged that accreditation by the NCC refers only to access to the venue and use of facilities provided for accredited persons. It does not constitute a licence or permission for the use of Intellectual Property (IP) rights http://www.ncctt.org/new/index.php/component/content/article/2-uncategorised/167-accreditation-2014.html. For information on accreditation, please contact the National Carnival Commission (NCC).
5. In relation to celebrities and well known individuals such as famous entertainers/ sportspersons, the protection of their images in Trinidad and Tobago is dealt with through the application of various laws such as passing-off, defamation, malicious falsehood, registered trademarks, contract, and tort, such as the tort of deceit. Therefore, where a photograph contains the image of a celebrity or sportsperson, the celebrity or sportsperson’s permission must be obtained to use the image commercially.