Moral Rights - An AOP Presentation to the Strategic Advisory Board for Intellectual Property

Moral Rights are, of course, important to all creators - but the Integrity and Attribution right are of particular importance to photographers. Indeed, any commercial visual artist, such as illustrators, value moral rights to protect their integrity and enhance their reputation.

Images are the perfect medium for a digital age, and all photographers use the Internet to enhance their reputation and sell themselves and their work to new and existing clients - either via their own websites, online galleries or stock libraries who license the images on their behalf. Images are constantly ’lifted’ from the Internet, despite warnings and imbedded metadata, and suddenly appear on other websites and social networking sites – but of course, many are never discovered. Metadata doesn’t stay with images, the publishing process itself often removes it and each time an image is lifted it loses any metadata imbedded – particularly when it changes format.

Most magazines and newspapers have an online edition – which is where images become most vulnerable because of the CDPA 88 Acts exception to the attribution and integrity rights - when reporting current events, or when published in a newspaper magazine or similar periodical. And, of course the rights are waivable – a fact that most commissioners are aware of and regularly demand.

The Integrity right is vital to photographers as images are easily manipulated. To be published, every image will go through a computer system after leaving the photographer - whether they’re delivered digitally or in analogue form.

Images manipulated before publication, in a newspaper for example, can distort the truth, and place the photographer in a position of defending his reputation. Images downloaded from the Internet, can be manipulated to the point where they are still recognisable as the original photographers, but the changes or extreme cropping has changed the visual impact of the image or made the photographer look like his work is no longer of a high quality, which could irreversibly damage their career. Commissioners may no longer trust the photographer to produce quality work, and commissions are lost.

The fact that the Attribution right has to be asserted causes many problems – most professionals are aware of moral rights in general but not necessarily the fact that this one needs asserting – or in what form. As professional bodies we can only keep alerting them to the facts but, in reality, it becomes relegated to the bottom of the pile when a shoot needs organising and an onerous contract full of other worrying clauses needs negotiating with the clients top lawyers! An impossible task for any freelance visual artist.

The need to assert the right is also unfair on amateur photographers - photography is an area in which anyone can participate, most households have a camera and so create copyright works and become authors under the CDPA. Many amateurs are encouraged to submit images to competitions; newspapers; news programmes and any number of other television programmes (including the weather forecasts). Amateurs are unlikely to be aware of the rights they have under The Act and would certainly be unaware of the right to be credited so aren’t in a position to assert it.

If the right has not been asserted, or a waiver has been thrust upon the photographer then the image will:

• Most probably become orphaned – and, if the Digital Economy Bill becomes law in it’s present form, will soon become available to all and sundry to use as and when they want; in ways not intended, and possibly damaging should the image contain people - and all at a fee to be decided, not by the copyright owner, but a licensing body not necessarily versed in the visual arts market, and with little chance of that fee going back to the photographer
• Public Lending Right money won’t be forthcoming as a credit is needed to prove authorship
• Secondary income in the form of reprography will not be available if the orphan is published without the authors knowledge
• Additional remuneration from re-sales under the Artists Resale Right will be lost
• No further license revenue will be received
• The chance of enhancing their reputation will be lost as will possible future commissions
• Increased cost to users trying to locate the photographer
• Increased costs to collecting societies or licensing bodies trying to trace image owners

Moral Rights currently have no monetary value, no teeth, so any discovery of a lack of credit (where asserted) or an image treated in a derogatory way, means the photographer has to prove a loss of income – as a freelancer this is incredibly difficult. How do you show a commissioner was trying to find you, because you weren’t credited, to give you a job or no longer wants to use you because they think the photography is no longer special or of a good enough quality. An injunction at this point is useless as the damage is already done, and monetary damages unquantifiable.

The lack of reward and recognition will diminish the incentive to create new works, which will, in turn, diminish the UK’s creative industry

So, whilst copyright belongs to the photographer, a lack of strong moral rights to protect the integrity of the image and ensure the photographer is credited when an image is published means the right to copy is diminished.

The Attribution right is fast becoming more valuable that copyright itself – it enables the photographer to manage their reputation which, in turn, generates income and, of course, prevents Orphans.

Consequently it was disappointing to read that the IPO’s Moral Rights Information gathering exercise, with regard to the cost of assertion, concluded with:

“Consequently, any changes to that requirement were unlikely to have any significant economic benefit”.

No, it’s not going to save the strange amount of money, which was attributed to publishers having to manage the assertion, but a change would certainly be an economic benefit to creators!