Photographer or mere button presser? It’s a hot button issue
2 mins reading time
Last Friday was World Photography Day. So what better timing to dive into a story that popped up last week on PetaPixel – one of my favourite photography sites.
It involves photographer Clancy Gebler Davies and her HerSuit self-portrait project. Due to being completely wrapped in hair, Davies hired photographer William Corbett to actually handle the camera for the shoot.
This is where the story gets interesting. Davies claimed that Corbett was only hired to physically press the shutter release and had “absolutely no editorial input whatsoever.” However, Corbett, a photographer of 40 years standing, claims that his role was quite different and that he determined key camera settings such as the lens, ISO, and shutter speed.
All of this came to a head when Davies won British Journal of Photography’s prestigious Female in Focus 2021 award, only for the award to be stripped when Corbett claimed authorship of the photo.
copyright analysis
Analysing the story presents an obvious difficulty, in that there are two conflicting accounts of Corbett’s involvement. We don’t know whether he merely pressed the button or played a role in the creative process of taking the photo – but let’s take a look regardless.
Section 10 of the Australian Copyright Act 1968 states that “author, in relation to a photograph, means the person who took the photograph.” That definition is present for historical reasons, as pre-1 May 1969, copyright in a photograph was owned by the owner of the material on which it was taken (ie the physical film or plate).
It is established law that when a person has an idea for a copyright work, but another person executes that idea, then it is the second person who owns copyright. Copyright does not protect mere ideas. In the 1890 case of Kenrick & Co v Lawrence & Co, the author was held to be the drawer of a picture, rather than the person who could not draw but gave instructions to the drawer as to the subject and treatment.
This is contrasted with the situation of a transcriptionist, who takes down word for word the material dictated by another. In the 1938 case of Donoghue v Allied Newspapers Ltd, the dictator and not the transcriptionist was the author for copyright purposes. In the words of the court: “A mere amanuensis does not, by taking down word for word the language of the author, become in any sense the owner of the copyright.”
Even with that background, the factual situation remains muddy. It was certainly Davies’ idea: “[Corbett] had no involvement in the concept, planning, or finance.” But when Davies claims that after every two or three frames, she made Corbett come up and show her the images, we do not know whether she was giving directions on the camera and positional adjustments that Corbett should make, or whether she was merely checking whether Corbett had taken a photograph that she was happy with. Most likely, we will never know.
statutory intervention
Beyond this first-principles analysis of the copyright situation, it is worth taking note of section 35(5) of the Copyright Act 1968. Where a person is paid to photograph another for private or domestic purposes, then the commissioner and not the photographer owns the copyright.
That’s not relevant to the British Journal of Photography prize of course, which is about authorship rather than copyright ownership. In any event, it might not apply to Davies. If Davies is a professional artist, it is likely that this photograph was not for her private or domestic use – but it is worth keeping in mind.
take away points
The take-away is obvious: sort out copyright ownership in writing beforehand. Since copyright in Australia can only be transferred in writing, any arrangement that shifts the default ownership position must be documented. The other point worth remembering is that it is the person who executes the idea, rather than the person who originally came up with it, that owns the copyright.
Macpherson Kelley’s IP team can advise you on ownership of copyright and assist with documents covering its ownership and assignment.
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Photographer or mere button presser? It’s a hot button issue
Last Friday was World Photography Day. So what better timing to dive into a story that popped up last week on PetaPixel – one of my favourite photography sites.
It involves photographer Clancy Gebler Davies and her HerSuit self-portrait project. Due to being completely wrapped in hair, Davies hired photographer William Corbett to actually handle the camera for the shoot.
This is where the story gets interesting. Davies claimed that Corbett was only hired to physically press the shutter release and had “absolutely no editorial input whatsoever.” However, Corbett, a photographer of 40 years standing, claims that his role was quite different and that he determined key camera settings such as the lens, ISO, and shutter speed.
All of this came to a head when Davies won British Journal of Photography’s prestigious Female in Focus 2021 award, only for the award to be stripped when Corbett claimed authorship of the photo.
copyright analysis
Analysing the story presents an obvious difficulty, in that there are two conflicting accounts of Corbett’s involvement. We don’t know whether he merely pressed the button or played a role in the creative process of taking the photo – but let’s take a look regardless.
Section 10 of the Australian Copyright Act 1968 states that “author, in relation to a photograph, means the person who took the photograph.” That definition is present for historical reasons, as pre-1 May 1969, copyright in a photograph was owned by the owner of the material on which it was taken (ie the physical film or plate).
It is established law that when a person has an idea for a copyright work, but another person executes that idea, then it is the second person who owns copyright. Copyright does not protect mere ideas. In the 1890 case of Kenrick & Co v Lawrence & Co, the author was held to be the drawer of a picture, rather than the person who could not draw but gave instructions to the drawer as to the subject and treatment.
This is contrasted with the situation of a transcriptionist, who takes down word for word the material dictated by another. In the 1938 case of Donoghue v Allied Newspapers Ltd, the dictator and not the transcriptionist was the author for copyright purposes. In the words of the court: “A mere amanuensis does not, by taking down word for word the language of the author, become in any sense the owner of the copyright.”
Even with that background, the factual situation remains muddy. It was certainly Davies’ idea: “[Corbett] had no involvement in the concept, planning, or finance.” But when Davies claims that after every two or three frames, she made Corbett come up and show her the images, we do not know whether she was giving directions on the camera and positional adjustments that Corbett should make, or whether she was merely checking whether Corbett had taken a photograph that she was happy with. Most likely, we will never know.
statutory intervention
Beyond this first-principles analysis of the copyright situation, it is worth taking note of section 35(5) of the Copyright Act 1968. Where a person is paid to photograph another for private or domestic purposes, then the commissioner and not the photographer owns the copyright.
That’s not relevant to the British Journal of Photography prize of course, which is about authorship rather than copyright ownership. In any event, it might not apply to Davies. If Davies is a professional artist, it is likely that this photograph was not for her private or domestic use – but it is worth keeping in mind.
take away points
The take-away is obvious: sort out copyright ownership in writing beforehand. Since copyright in Australia can only be transferred in writing, any arrangement that shifts the default ownership position must be documented. The other point worth remembering is that it is the person who executes the idea, rather than the person who originally came up with it, that owns the copyright.
Macpherson Kelley’s IP team can advise you on ownership of copyright and assist with documents covering its ownership and assignment.