Just whose photo is it, anyway? PDF
Written by Diane Smyth   


As the facts stand, the BBC does not look good. Whatever the eventual outcome of its spat with Reginald Davis, this much is clear: the organisation scanned a copy of a photographer's image and used it, without his knowledge, to illustrate a programme antithetical to his work.


Davis has photographed every royal family in the world, and has built his career on developing good contacts with them. He was perturbed, therefore, to realise that his image of Prince Charles' and Lady Diana's wedding had been used to illustrate a programme on royal infidelity. Not only did this offend Davis' sense of honour, it also jeopardised his business contacts.


Of course, Davis can't really complain when his images turn up on programmes he doesn't like, if he has signed away the rights to his entire archive.


This is a moot point - Davis argues that he thought he would be contacted to agree each image use. And in fact, this would have been in line with the original spirit of the BBC's standard TelPic agreement. But, whatever the rights and wrongs of the use of the image, the scanning is another matter altogether. First of all, the quality of a scanned image will inevitably be inferior to the original. If he wanted to labour the point, Davis could argue that using a scanned image damages his reputation - implying he produces inferior-quality images. And, perhaps more disturbingly, if images are scanned rather than directly accessed, photographers are completely reliant on their clients to tell them what has been used where. As the Davis/BBC argument shows, this can easily be overlooked. And, as Davis found out, organisations that forget to inform photographers about old picture usage can also forget to pay.


This point also raises the issue of image piracy. The BBC acted within its rights in as much as it had permission to use Davis' image - but a company with no rights to the images whatsoever could easily act in the same way.


As the US army has perhaps demonstrated, digital technology is making it harder and harder to control picture use, and photographers can hardly be expected to monitor every possible publication of their work. Indeed, Davis is now concerned that his image has gone up on the BBC website without adequate protection - opening his image up to be copied across the world with a simple click of a button.


It is difficult to see what photographers can do about this unauthorised duplication of their images. Few can afford to track down every use of their images and even fewer to legally pursue the matter in law, perhaps the only two things that could effectively put a stop to it. Interestingly, Corbis' legal team has started to do this, aggressively protecting its intellectual property by pursuing what is, effectively, theft.


But leaving this question, photographers could learn some practical lessons from Davis' experience. First, read the contract carefully. The BBC used a standard industry contract but, it seems, extended the boundaries far beyond its initial remit. Expensive and time-consuming as it would be, photographers should really get legal advice before they sign anything - whether from their own lawyer or an industry trade body. These days, it seems, little can be taken on trust.


Diane Smyth

British Journal of Photography







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