Photographers and their intellectual property rights


So many are the woeful tales we have heard from our friends who are photographers about having their bread and butter snatched from the tips of their fingers. You see it, you smell it, you can almost taste it, and then…. like magic, poof! One minute you had it and the next, it is gone. The all too common story of the little man in a big bad world. Someone has used or profited from your photographs without your permission.

So what can you do photographers? Surely what can you do?

You Have Rights

First things first, you need to know you are protected by law. You are protected by the Copyright Act of Kenya. As I am sure many of you know, this Act has a class of works known as artistic works that are entitled to copyright protection. And what is covered under artistic works, you ask?

(a) paintings, drawings, etchings, lithographs, woodcuts, engravings and prints;

(b) maps, plans and diagrams

(c) works of sculpture;

(d) photographs not comprised in audio-visual works;

(e) works of architecture in the form of buildings or models; and

(f) works of artistic craftsmanship, pictorial woven tissues and articles of applied handicraft and industrial art.

And what really is copyright, you ask? The word itself is your answer right there. The simple meaning is the right to prevent others from copying i.e. only you have the right to copy that work – copy-right.

Luckily, we are not the ones who drafted that Act, so our Act goes into a lot more detail about your copy rights. The Act says that the person who has a copyright is the only person who is allowed to:

(a) Reproduce that work in any material form;

(b) Translate that work;

(c) Adapt that work to a format different from its original depiction or representation;

(d) Distribute that work to the public by way of sale or rental or lease or import or any other such means;

(e) Communicate that work to the public e.g. by way of display or publication; or

(f) Broadcast that work.

How Long Can You Exercise These Rights?

Until you are an old man or woman, that’s how long! The law affords you this protection for 50 years from the end of the year that you made that photograph, or from the year that you made that photograph available to the public (say by offering it for sale or displaying it in a gallery, on a website, etc.), or from the end of the year you first published it, whichever of those dates is the later one. So for 50 years, only you are allowed to do the above acts.

And what can you do to someone who does the above listed things without your approval or consent? You can:

(a) Issue the person with a cease and desist letter requiring them to immediately stop the use of those works and take them down from wherever they may have put them up

(b) Send a demand letter for compensation for use of the works

(c) Sue the person for compensation or what we call damages if they refuse to pay as per the demand letter

(d) Request the court to issue an injunction to stop the person from using those photographs

(e) If the person has made profits from exploiting your works, ask the court to have him account for those profits and have them awarded to you

(f) Have the court order that the person deliver to you all infringing copies of that work

(g) Have the court award you an amount calculated on the basis of reasonable royalty which would have been payable by a licensee in respect of the work or type of work concerned.

Certificates of Registration of copyright really come in handy when you decide to go to court so get those whenever you can for all of those photos you feel are important, special, valuable, or for all of them if you so wish. These can be obtained by filing an application with the Kenya Copyright Board.

There are only two circumstances where you will not own the copyright in the photographs that you take:

(a) Where someone commissions you (pays you) to take those photographs under a contract of service

(b) Where you are employed to take photographs under a contract of service

Get it in Writing! Contracting for Photographers

Which now brings me to another sticky point. CONTRACTS! The bane of every non-lawyer’s existence. Those long documents barely drafted in English which give with one hand and take with the other and at the end of the 20 or so pages, you are so turned around that you don’t even know what you were discussing in the first place. In fact, I believe the phrase, “the devil is in the details” arose from those kinds of long-winded jargon filled contracts where you think you are selling a cow only to realize you sold your kidney and your first born child as a sweetener to the deal.

Contracts do not have to be that laborious thing that makes you want to pull out your hair.

There is a rumour that the first contract of football superstar, Lionel Messi with his club Barcelona was on a napkin (read serviette) when he was 11 years old. Anybody know Messi to confirm this?

In Kenya do we have such colourful stories? Definitely some fun research for us to do but what we are trying to say is, get it in writing.

So the next time someone comes to you and says, “Hey, can you take these photographs for me? I will pay you” just say, “Sure! Shall we put that in writing?” and ensure you get a simple agreement drawn up and signed before you commence the work.

When you are talking serious deals, please, engage a lawyer. Remember, the devil is in the details and those details will definitely get you if you do not consult before signing.

This is very important because the problem with oral contracts (which are nonetheless recognized in law) is that they are “he said-she said” affairs and who is the court to believe? The judge wasn’t there with you. Neither was the lawyer with you. So how do you prove that “such and such” is what we agreed and not “this and that” especially if there were only the two of you during the discussions?

You have to get it in writing.

Defend Your Rights

Then there is this other issue that all lay people are terrified of. Going to court. Because of the time, the delay and not to mention the cost.

So how is a single visionary photographer to have his day in court? This is where associating comes in handy.

Say you have an association. Say you create a welfare fund that members can contribute to and which may be used for pursuing cases that are of interest to all photographers in general. Say you get some lawyers who are knowledgeable and passionate about Intellectual Property matters and put them on your panel. Say when you have such issues that affect a majority of your members, you instruct one of these lawyers to defend one of your members and allow that member to draw out of these funds to pay the lawyer.

When this member gets a favourable ruling from the court, the entire association is able to use this judgement as a reference point for all such future cases. Eventually, the power of such an association in protecting its members’ rights will begin to set the trend for how photographers are treated. As Hellen Keller said, “Alone we can do so little; together we can do so much.”

And this can be the beginning of a beautiful story that you will tell for generations to come.


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