The specificity of the features of one of the objects of copyright – a photographic work, is primarily due to its significance in modern society and the transformation from one form of reproduction (ordinary photo) to another form (digital photo). These changes dictated the peculiarities of the legal protection and protection of digital photographic works.
Photo – the theory and methods of obtaining a visible image of objects on hypersensitive photographic materials (halogen-silver and silver-free); distinguish black-and-white and color photography, artistic and scientific-technical (aerial photography, micrographs, X-ray, infrared, etc.) – Great Encyclopedic Dictionary, 1998.
Photography – obtaining images (photographs) of shooting objects on photographic materials; the branch of science, technology and art (photographic art) is based on the ability of light to form in the photosensitive layer of photographic material (for example, film) placed in a photographic apparatus, a hidden photographic image, which, after processing (photographic manifestations, photographic fixation, etc.) turns into visible (first negative, and then positive and single-armed diffusion photographic process – simultaneous very fast obtaining of negative and positive images in the very
Photographic art is a type of artistic creation based on the use of expressive means of photography. Divided into documentary, artistic and applied (used on posters, in the design of books, in advertising) – Ukrainian Soviet Encyclopedic Dictionary in 3 volumes, 1989
And the question is quite appropriate: what to do and how to counteract the illegal use of such an object of copyright as a photographic work, for example, during advertising of any product or service in market relations.
Indeed, according to the legislation of Ukraine, we can refer to the following articles and paragraphs of regulatory legal acts.
According to clause 1 of article 11 of the Law “On Copyright and Related Rights”: In the absence of evidence of another, the author of the work is a person indicated as the author on the original or copy of the work (presumption of authorship).
According to clause 5 of article 15 of the Law, the author (or other person having copyright) has the right to demand payment of remuneration for any use of the work.
In accordance with Art. 4 of the Law of Ukraine “On Advertising”: The use in advertising of objects of copyright and (or) related rights in accordance with the requirements of the legislation of Ukraine on copyright and related rights.
According to Clause 1 of Art. 7 of the Law “On Advertising”: The main principles of advertising are: legality, accuracy, reliability, use of forms and means that do not harm the consumer of advertising.
According to Part 3 of Article 15 of the Law, the exclusive right of the author (or copyright holder) is the right to permit or prohibit the use of the work (including through distribution and processing)
In accordance with Articles 31, 32, 33 of the Law, the use of works is allowed only on the basis of a copyright agreement with the author or other person having copyright, or with the organization of collective management, to which copyright subjects have transferred the authority to manage their property copyright.
In accordance with Art. 50 p. A of the Law, violation of copyright, which gives grounds for judicial protection, is: the commission by any person of actions that violate the property rights of copyright subjects, defined in Article 15, taking into account the restrictions on property rights provided for by Articles 21-25 of this Law.
Thus, given the above definitions, we conclude about our object – digital art photo, which can be subjected to technical processing, and is endowed with such properties as: 1) color/black and white art photo; 2) production method – digital shooting; 3) the photographic work is made by obtaining an image of objects of photography (for example, models) on photographic materials; 4) photo is an element of photo art, which is based on the use of expressive means of photography; 5) it is possible to use a photographic work in advertising as a type of artistic creativity.
About the application and use of digital photography
The photographic process is undoubtedly creative in most cases. Along with the use of special light effects and the use of various materials, photographers widely use the possibilities associated with various kinds of interference with the “pure” photographic process (manipulation during shooting, manifestation, photo printing, retouching, collage, coloring, etc.). The photo fixes surfaces, but cannot at the same time reflect both the “internal” state of these “surfaces” and the photo artist himself. The creation of photographic images allows not only to perpetuate what is visible in the outside world, but also to express the thoughts and feelings of the photographer.
The author of a regular photo can always prove his authorship by demonstrating the original negative or slide, knowing that the copy that the violator has of his rights is different and looks exactly like a copy. Digital photos are very easy to copy and distribute outside of copyright control. And if we also take into account that when copying digital images (as well as digital sound), the quality of the copy does not deteriorate compared to the original (as is the case with recording channels), then it is obvious that the last obstacle to photo piracy disappears.
The rights of a photo artist can be used not only to generate income, but also to prohibit the use of his work that does not correspond to his intentions and views.
In accordance with the Law of Ukraine “On Copyright and Related Rights,” copyright for a photograph arises from the moment of its creation and is valid throughout the author’s life and 70 years after his death. The photo artist is recognized as the owner of all personal non-property rights provided for by law (copyright, right to name, right to publish, right to protect the reputation of the author). A whole range of property copyrights is assigned to him in relation to the work he created, which make it possible to allow (receiving a reward for this) or not to allow:
- reproducing photo works in newspapers, magazines, books, posters, postcards, on industrial products;
- distribution of copies of photographs, their import (import into the territory of Ukraine, including when used on book covers as magazine illustrations);
- public display of photography (at exhibitions, in windows), display of a photographic work on television;
- reprocessing a photograph (use in creating collages, etc.).
About the system of legal protection of digital photos and its features
The legislation recommends that you place a copyright sign on a photo to notify you of your copyright.
The peculiarity of digital photography is that digital photography does not have copies, but only “copies of the work.” When a photo is transferred from a memory card to another medium, the technological essence of this process is that the original is simply erased from the card, and an exact copy of the original appears on the “other medium,” if such a term can be applied. Although the legislation of Ukraine also protects copies of copyright objects.
Despite the common belief that a copy of an electronic photo does not differ from the original, a slightly different opinion can be proved. The images themselves really have no differences. But the files that contain them are quite noticeable. Any file contains not only the image itself, but also the so-called technical information. In particular, when recording a file, the digital camera puts there information about the shooting modes, about the settings of the camera itself, as well as information about the manufacturer and model. With any file change, this information disappears and is replaced by the technical information of the program that replaced this file. Thus, it is always possible to determine how a particular file was created. And the image stored therein is the result of a digital camera shooting or the result of a computer program.
If the photo is posted on the Internet, then here you can prove your authorship of the work. It is known that there are so-called “search engines” on the Internet that regularly browse the content of sites on the Internet and enter it into a huge database, in which then everyone can find the information they need and find out the address of the site where it is located. There are special search engines that index images and store them in their database as icons. Information from these search engine databases can be presented as evidence in priority disputes. Thus, you can prove that the object of the dispute was recorded by search engines on many sites, but on your it appeared earlier than in other places. This describes some of the main ways to protect the rights to digital photography.
Ukrainian law does not directly provide for the presence of such a copyright object as digital photography. Although the Law has a sufficient number of general formulations that allow the application of legislation in digital photography.
What is a digital photo? An unscrupulous user, in his justification, often motivates his misconduct by the fact that, in his opinion, digital photography is a sequence of digital data recorded on disk. He insists that this data is not stolen (assigned), it remains in place, that this data is not copied, that is, not rewritten on another medium, because he does not have a copy of this data. This image is the result of the work of his computer program, legally acquired, and based on this data, the image is calculated and built. It turns out that the result of this program is his property.
In this case, there is a substitution of the concepts on which the justification is based. It is clear that the file is not the image itself, but only its media.
Copyright for works of this kind does not depend at all on the type of material carrier on which they are located. And while the Act does not include the words “digital photography,” it is clearly a “photographic work.”
Digital photography can also be considered as an audiovisual work, a video film, a filmstrip, a slide film consisting of one frame. There are no restrictions on the length of the video, and in any case it is subject to copyright, regardless of how many frames it consists of and regardless of what kind of file it is stored in and on what material medium this file is located, on a computer disk, on a videotape, on a CD or memory card.
Digital photography is precisely photography, an “audiovisual work.”
An unscrupulous user can claim that a digital photo is not an “audiovisual work,” but an “audiovisual display” that is generated by a computer program that belongs to him. So the rights to this “reflection” also belong to him. But, generated – means done, the computer program does not make an image, it has already been taken and recorded on media. The program only “shows” what is written in the file.
According to Ukrainian laws, the right to authorship belongs to the author already by virtue of its creation and the author is not obliged to register it or fix it in some other way.
The site on the Internet is indeed a place open for free access, and the transfer of information to the Internet is really a “cable message.” But, if, as a result of such a “message,” the copyright object is distributed, then this no longer falls under the definition of “message.” “Report – show, perform, broadcast or do another action (except for the distribution of copies of a work or phonogram).” Posting on the site is always distribution, everyone can pick up a photo from there.
About the protection of photographic works according to international legal norms, which are part of the national legislation of Ukraine
Berne Convention on the Protection of Literary and Artistic Works since 1979 (Ukraine joined in 1995):
Photographic works, to which works expressed in a similar way to photography are equated (Article 2, paragraph 1);
The works mentioned in this article are protected in all countries of the Union. This protection is carried out in favor of the author or his successors (in Article 2 of paragraph 6).
The use of rights and their exercise are not related to the implementation of any formalities; such use and implementation does not depend on the existence of protection in the country of origin of the work (Article 5, paragraph 2).
The authors of literary and artistic works protected by this Convention shall have the exclusive right to allow the reproduction of these works in any way and in any form (art. 9 cl. 1).
In order for the author of literary and artistic works protected by this Convention to be considered, in the absence of evidence of the opposite, as such, in accordance with this, in the countries of the Union, it is enough if the author’s name is indicated on the work in the usual way (Article 15, paragraph 1).
WIPO Copyright Treaty (Ukraine joined since 2002):
Article 9 Duration of protection of photographic works, where the provisions of Article 7 (4) of the Berne Convention do not apply to photographic works of the Party to the Treaty (the term of protection is not 25 years, but 70 years).
About the legal way to obtain permission to use a photographic work for advertising purposes
The designer of the advertising product received an order. And when there is an order, then an image is needed to fulfill it. What image is needed is determined, of course, by the topic of work or the customer himself. For example, an image of an exotic plant or a certain type of interior is required. Try at least just finding his image to know what it looks like. There are not so many legal ways to acquire an image: draw it yourself, shoot it to order the desired plot, or purchase a finished one. With the purchase of images, you receive a certain permission to use the image for commercial purposes, that is, a license. An exclusive license means that only one person can use this image – it is clear that within a certain period. In addition, a non-exclusive license means that the manufacturer has the right to allow this image to be used by another person. As a rule, this type of license is used for CDs with finished images. The text of the license agreement is usually printed on such a disk. If there are any doubts about the quality and ownership of such information, it is better to raise a question in advance to manufacturers in order to avoid further misunderstandings and violations of the rights of third parties. In the commercial use of the image, the rights of all copyright holders under copyright law must be respected. For any use of photography (except for a few exceptions that exist mainly regarding “educational” and “information” purposes), the consent of the copyright holder and the author paid in accordance with the established procedure must be obtained