The Copyright Act, 1911, annotated/Section 21

by Evan James Macgillivray

21. The term^[1] for which copyright^[2] shall as Provisions as to photographs. subsist in photographs^[3] shall be fifty years from graphs, the making of the original negative from which the photograph was directly or indirectly derived, and the person who was owner of such negative at the time when such negative was made shall be deemed to be the author of the work^[4], and, where such owner is a body corporate, the body corporate shall be deemed for the purposes of this Act^[5] to reside within the parts of His Majesty's dominions to which this Act extends^[6] if it has established a place of business within such parts.

At present, under the Fine Arts Act, 1862, photographsNature and extent of protection. are protected for the life of the author and seven years, After the new Act comes into operation the period of fifty years from making will be substituted and will apply both to old and new works^[7], and the publication or non-publication of the photograph will not affect the term of copyright. After the fifty years has expired there will be no proprietary right of any kind in the photograph, even although unpublished^[8]. In the case of an unpublished photograph the protection depends on whether the author has the necessary qualification of nationality or residence^[9]. In the case of a published photograph the protection or continuation of protection depends on whether it has been first published within the territorial limits previously defined^[10].

Author of photograph.The Act sets up a fictitious author, and thereby gets rid of the difficulty of ascertaining in the case of photographs who it was who actually exposed the plate, or, as the author was defined in one case, who was the effective cause of the picture which was produced^[11].

Ownership of copyright in.The owner of the negative when the photograph is taken is the first owner of the copyright, except where "the negative was ordered by some other person and was made for valuable consideration in pursuance of that order"^[12]. This probably leaves the law very much as it is at present with regard to the copyright and ownership of the negative in the case of photographs taken b}' a professional photographer . In the ordinary transaction between a professional photographer and his customer the presumption will be as before, that the copyright vests in the customer^[13]; but that, by the custom of the trade, the property in the negative remains with the photographer^[14]. The presumption that copyright vests in a person who sits to a photographer may be rebutted where the circumstances show that the photographer was not commissioned to take the photograph, but took it on his own behalf, and that the sitter sat at his request either for a money consideration paid to the sitter, or in consideration for a copy or copies of the photograph, or for no consideration at all^[15]. Where no money consideration passes it is not always easy to determine whether the photographer took the photograph for his own purposes or whether he was commissioned for valuable consideration. The opportunity which the photographer gets of taking the photograph and his chance of selling copies to the customer if the photograph turns out to be satisfactory may be a valuable consideration, and if the photograph was made in pursuance of an order the copyright will vest in the person who gave the order, even although he did not pay and was not bound to pay for the photograph or to order any copies unless he pleased^[16].

As no registration is now necessary as a condition Photographer and customer: breach of contract. precedent to action, the case of Pollard v. Photographic Company^[17] has lost much of its importance. In that case it was held that where a photographer was employed by a customer in the ordinary way, then even although through want of proper registration the customer could not sue on copyright, yet, as there was an implied term in the contract between the parties that the photographer would only use the negative for the purpose of supplying his customer with copies, the customer could restrain the photographer from making copies for his own use or selling copies or exhibiting them in public.

Difficult questions sometimes arise out of theArrangement between press photographer and illustrated papers. transactions between press photographers and the proprietors of illustrated papers. It is common for the press photographer to take large numbers of photographs of sporting and other events and places of current interest, and to submit prints to the numerous illustrated papers. The editor of the paper selects such photographs as may be suitable for his current issue, and may put some of them on one side for possible use in the future. When any, photograph is published in tho paper, a fee is paid upon an agreed scale. It has been held that, in the absence of express terms, the proper inference is that, when a print is sent, the sending of it constitutes an offer to permit that photograph to be reproduced for the agreed fee. The offer is one that can be withdrawn at any time before acceptance, and therefore the photographer may, at any time before a photograph has actually been inserted in the make up for a particular issue, withdraw his permission, and prohibit all further reproduction of his photographs. The fact that the proprietor of the paper has made a block does not entitle him to say that he has accepted the photographer's offer, and may therefore reproduce the photograph at any future time on payment of the agreed fee. Sometimes a lower scale of charges is agreed for a second or subsequent reproduction of the same photograph, but even that does not give the proprietor of the paper who has reproduced the photograph once, and has the block in his possession, an irrevocable licence to reproduce it a second time^[18]. It is clear that if a photograph is submitted for reproduction in one paper, the proprietor of the paper cannot reproduce it in another paper without the photographer's express consent^[19].

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1. Sect. 3.
2. Sect. 1 (2).
3. Sect. 35 (1) ("Photograph").
4. Sect. 5 (1).
5. Sects. 1 (1) (b), 23, 26 (3), 27.
6. Sects. 25 (1), 26 (1), 28, 35 (1) ("Self-governing dominions").
7. Sect. 24.
8. Sect. 31.
9. Ante, pp. 2, 7.
10. Ante, pp. 2, 5.
11. Nottage v. Jackson (1883), 11 Q. B. D. 627.
12. Sect. (1).
13. Boucas v. Cooke, [1903] 2 K. B. 227; Wooderson v. Tuck (1887:, 4 T. L. R. 57.
14. Rotary Photographic Co. v. Taber Bas-Relief (1903), British Journal of Photography, Vol. 50, p. 250; McCosh v. Crow (1903), 40 S. L. R. 514; Gibbon v. Pease, [1905] 1 K. B. 810.
15. Melville v. Mirror of Life, [1895] 2 Ch. 531; Ellis v. Marshall (1895), 11 T. L. R. 522; Ellis v. Ogden (1894), 11 T. L. R. 50.
16. Stackemann v. Paton, [1906] 1 Ch. 774. In the case cited the question was whether under the Fine Arts Copyright Act, 1862, there was "good or valuable consideration." Farwell, J., noted this distinction between "good" and "valuable," and held that there might be "good" consideration although it was not "valuable" consideration. Under the new Act the consideration must be valuable, but it is submitted that on the facts stated there was a valuable consideration.
17. (1888), 4 Ch. D. 345.
18. Bowden Bros. v. Amalqamated Pictorials, Ltd., [1911] 1 Ch. 386.
19. Nicholls v. Parker (1901), 17 T. L. E. 482.