When it comes to the protection and ownership rights of a photograph, there is still a lot that can be done in South Africa. It is not possible to register copyright for photographs in South Africa. Unlike other forms of intellectual property, copyright vests in the photographer once the photo has been created in material form, but in South Africa the person who commissions the photograph obtains ownership. In other words, freelancers must therefore step down from any rights to their photographs which are commissioned by others. Fortunately, a simple clause in an agreement between the photographer and the commissioner can ensure that the photographer still retains rights to his own work. Copyright Attorneys specialise in setting up agreements like these.
Material form: One of the requirements for copyright is that the work must be created in material form. The idea of just taking a photo cannot qualify for this right, but saving the files on your computer, or printing the photographs qualify as material form.
Original: The photograph must be original, but it is important to understand that unlike patents, the photo does not necessarily have to comply with novelty requirements to be original. If the author or artist puts in a lot of effort and skill as well as time into the production of the artwork, it can be original.
Stock Photography Rights
Stock photographs taken and made available for public or commercial usage via the Internet upon payment of a fee and agreement to the terms and conditions of usage. As such photographic copyright exist on the stock photos. The stock photographs can be bought and used in a website, publication, graphic design or any form of publication. It should be noted that photographic copyright exist on stock photographs and you can thus not even copy and use the thumbnail image without purchasing the photo. Various types of photographic copyright exist for stock photos. It is imperative to understand the different usage rights. A royalty fee photo means that you can use the image as many times as you want for a specific fixed fee. You will thus be able to use the photo in a brochure of which for instance, 2000 or so are printed. You should however, note that you will not have exclusive rights to the image. You may for instance, not resell the image if not agreed upon with the owner and the photo can be bought by several persons who may use it in their websites and publications.
If you are a photographer and require assistance with terms and conditions wording for photographic copyright agreements or if you are a buyer of stock photographs and want to make sure that you stay on the right side of the law, contact us at Smit & Van Wyk, Inc. for legal advice today.
Any original work made by a person is eligible for copyright protection. Originality refers to the fact that the author must have created the work through the application of the author’s own creativity and labour. A qualified person refers to any national or resident of South Africa or a Berne Convention country.
This depends on the type of work that has been created. Generally, the term of copyright is 50 years, subject to the following:
Literary, Musical or Artistic Works – copyright exists for the life of the author plus 50 years following death, calculated from the end of the year the author died in or 50 years from the date of first publication, performance in public, offering for sale of records thereof or the broadcasting thereof , whichever is later.
Films and Photographs – 50 years from the end of the year in which the work is made publicly available, or the end of the year in which the work is first published, whichever is longer, or fifty years from the end of the year in which the work is made
Sound Recordings – 50 years from the end of the year in which the recording is first published
Broadcasts – 50 years from the end of the year in which the broadcast first takes place
Programme-carrying Signals – 50 years from the end of the year in which the signals are emitted to a satellite
Published Editions – 50 years from the end of the year in which the edition is published
Copyright in South Africa differs from other forms of intellectual property in that it does NOT need to be registered. Unlike patents, trade marks or registered designs, copyright vests in the author of a work once the work is created in a material form.
Transfer of Copyright
Much like other property, copyright can be transferred by assignment, testamentary disposition or by operation of law. Copyright can also be licensed to a licensee for royalties. It is important to note that an assignment and an exclusive license (which precludes anyone else, including the author from using the creation) must be in writing and signed by the assignor to be valid. A non-exclusive license may be written or oral, or inferred from the conduct of the parties.