The Copyright of Photographs

Progress, Volume VI, Issue 12, 2 October 1911, Page 825

The Copyright of Photographs

The concensus of opinion is that the copyright in all photographs should, in common justice, be vested in the author. In Great Britain, and in the United States of America, an organised effort is being made to obtain more satisfactory

legislation in this direction, There, was an attempt made in 1896 to secure photographic copyright legislation for New Zealand, but the Bill then passed was rendered useless to portrait photographers by the introduction of a clause making it apply only to landscape photography; but, even'had this clause not been inserted, it would have been of very little value to portraitists, as in another clause it is stated that when a photograph is made to order for "a valuable consideration," there shall be no copyright in such photograph. The receiving of a valuable consideration is undoubtedly the critical and only sticking point in all artistic copyright legislation, and we fail to see why it should be so. It is only just and equitable that the copyright of all artistic work should be vested in the

author or producer, whether he receives "a valuable consideration" or not for his work, and that the purchaser of such artistic work has no equitable or just right to have same copied or reproduced unless the copyright has been legally assigned to him by the author. Now, if this contention of equity can be substantiated, and proved by sound argument to be justifiable, Ave fail to see how the legislators in a country which boasts of its democracy can longer refuse to grant the protection afforded by such a copyright, especially when it can be clearly shown that it is necessary in the best interests of the public, and that it will also have a considerable influence towards raising the standard of artistic and photographic work in the Dominion. Many will say, "I paid for this photograph. It is my photograph, therefore .1 can do as I like with it, and employ anyone I wish to make reproductions of it." This very common 'statement is generally made without thought, and contains no argument. The argument is not so much whether, after an individual has for certain reasons selected a particular photographer to produce his portrait, he has then the right to have it reproduced by other than the original author, but whether other than the original author has any equitable or just rigid to reproduce such portrait for "a valuable consideration," and' thereby deprive the originator of the portrait of the just profits of his labour. A photographer does not sell the knowledge, skill, individuality or idea he puts into the production of the negative; he sells only a certain number of prints or pictures from such negative at a stated price. To reason this point by analogy: Take the author of a book; he is granted copyright in his book, although he receives "a valuable consideration" by the sale thereof. It is recognised that he sells the result only of his acquired knowledge and ideas in the form of a book the photographer sells the result only of his acquired knowledge and ideas m the form of a photograph or picture but, for some unknown reason, this has not up to the present been recognised by our legislators, and the present law permits any unskilled and unscrupulous copyist to plagiarise and reproduce the ideas contained in a photograph, and to sell them as his own, and thereby rob the author of his just reward. In most cases these copyists go so far as to sign their own names to the plagiarism. To sell the ideas and thoughts of an author of a book is a crime, yet to sell the ideas and thoughts of a photographer is justifiable according to the present law. Where is the equity? The above argument is sound, and is founded on precedent, for all Governments have recognised that it is only just and equitable that original ideas should be protected, and have at all times legislated accordingly. There is no need of argument as to whether photographic work contains original ideas, as this point was settled as far back as 1862 by the British Government, when photographic work was included in the Artistic Copyright Bill of that date. This Act is still the only protection at laAv enjoyed by . portrait photographers; for, as stated'before, the

New Zealand Act of 1896 does not include portraiture; and, moreover, the New Zealand Act was rendered of very little practical use by the introduction of the "valuable consideration" clause. The only advantage gained in this Act is that New Zealand landscape photographers can now protect any photograph, for which they have not received a valuable consideration, for the term of five years without registration. In fact the passing of this Act in its present form Avas, it seems to us, a waste of time. Now the only protection at law enjoyed by the portrait photographers of New Zealand is the British Act of 1862, and this Act is of little or no practical use for two obvious reasons :(1) On account of the bugbear clause re valuable consideration; (2) because of the condition necessitating registration. The deletion of the "valuable consideration" clause from any future Photographic Bill is the only point on which there can be any debate, for under the present law a photographer may copyright only a photograph for which he has not received valuable consideration. In the first place, he does not receive a valuable consideration for the idea contained in the negative, but it is obvious that he must receive some payment for his work. This he receives from the sale of positives or prints, in like manner with the author from the sale of his books. Therefore there is no reason why the copyright should not be vested in the author or producer of a photograph. It is absolutely the only method of protecting the public and photographers from an organised army of unscrupulous copyists, whom photographers under the present law are powerless to combat. Many other arguments could be brought forward to support this contention. With regard to registration, Ave think.it would be granted that almost any form of registration must prove unworkable when it is considered that a photographer makes from one to twenty negatives a day of different individuals, and any mark or word such as "Protected," name and date, etc.. such as required by the present New Zealand Act for landscape work, is cumbersome and greatly mars the artistic beauty of small work.