I agree that the answer is unclear, but largely for the reasons set out in my earlier response I have to disagree with your conclusion. I do not think that a person can be an author if they are not present and do not know that the picture is being taken (cf Creation Records). Also, they are very old cases but I think Nottage v Jackson (1883) 11 QBD 627 and Melville v Mirror of Life [1895] 2 Ch 531 both agree with me. I can't believe that Melville would be decided now as it was then, on the facts, but the principle is clear: the author is the person who determines the final appearance of the image. I think that the choices made by the individual are quite sufficient to qualify him or her as the author.
Tim
------------------
Tim Padfield
Information Policy Consultant
Information Policy and Services Directorate
The National Archives
Kew
Richmond
Surrey TW9 4DU
Tel +44 (0)20 8392 5381
Fax +44 (0)20 8487 9219
Websites http://www.nationalarchives.gov.uk
http://www.opsi.gov.uk
Please note that if this message contains advice on copyright it is not, and should not be treated as, formal legal advice.
-----Original Message-----
From: Archivists, conservators and records managers.
[mailto:[log in to unmask]]On Behalf Of Dagmar Hinz
Sent: 22 November 2008 11:59
To: [log in to unmask]
Subject: Re: IPR
This is from Burkhard Schafer (University of Edinburgh, [log in to unmask]) :
We discussed this between colleagues here at the University of Edinburgh who
are working in the field of IP law. Consensus was: Interesting question...
We were not sure if there is a clear answer though (typical lawyers).
However, there are three factors which point to the copyright owner being
the owner of the photo booth (probably) rather than the individual.
In the first place, the CDPA 1988 says that the first owner of copyright is the
author, so it would usually be the photographer or person who takes the
photo, as author, who is the owner.
Secondly, in the case of a computer generated work (if a photo from a booth
is indeed computer generated - which it would be where the photo was a
digital image, but perhaps not if still on traditional film) then the author (and
therefore the owner) is the person who makes the necessary arrangements for
the creation of the work.
Thirdly, the person who commissions any photo is not the owner - the
photographer remains owner of the copyright in the photo, subject to some
rights of the subject of the photo not to have the photo issued to the public
etc (s85).
Taken together, we think the balance must fall in favour of the photo booth
owner (NB not manufacturer) as owner of the copyright.
Two caveats were raised: First, one might argue that the acts of aligning your
face with the grid, chosing a facial expression etc, and ultimatly pressing the
button are sufficient to make the customer an "author". There are no clear
authorities for this, and on balance we considered it unlikely to convince a
judge, as the input is minimal. Second, The US in particular recognises
increasingly a new type of IP right in the commercial exploitation of one's
picture - at least in the case of celebrities. The UK has not yet followed this
approach and in the case of Douglas v Hello explicitly rejected the idea - while
at the same time adopting some of its practical implications. It may well be
that the UK will eventually follow the US model. See Beverley-Smith, The
Commercial Appropriation of Personality, CUP 2002, for a comprehensive
comparative study
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