You may have heard about the dispute of copyright ownership over a selfie taken by a macaque in 2011. The wildlife photographer by the name David Slater who owned the camera claimed ownership when a website published the photo without his permission. However, his argument was rejected on the ground that “copyright in a photograph is the property of the person who presses the shutter on the camera not the person who owns the camera, and not even the person in the photo.” Unless a written agreement exists that makes the photo a work made for hire, any person you ask to take your picture with your camera owns the copyright in that photo, not you. This article expounds more on copyright in photography. 

However, if the image falls into the “work-made-for-hire” category this general rule does not apply. A work-made-for-hire relationship is created in two situations. One, where the photographer is an employee hired to take photographs for the employer for instance, a journalist who is an employee of a newspaper. Two, where the photographer is hired to provide photographs for collective works or compilations and signs a written agreement that specifically states that the work is to be considered a work made for hire good example here are photographers in wedding or portrait events. 

Is it legal to take a picture of someone without consent?

Though copyright in photographs is the property of the person who presses the shutter; as a photographer, you ought to understand that when you take photos of people; you need to be careful not to invade their privacy. For example, the act of going on someone’s land or compound to take photos without permission would be considered as trespassing and a violation of the owner’s right to privacy. Subsequently, and as a photographer, understand that even photographing someone in public without his or her consent is unlawful. Consequently, it is unlawful to view and photograph people inside of residences or other places where privacy is normally expected, even when the photographer is standing in public. 

It should also be noted that copyright protection subsists in original works of authorship that are made either directly or with the aid of a machine or device. Copyright in photos from a drone operated directly by a human are owned by that human provided the drone is not preprogramed to operate without a human. 

How to avoid Copyright infringement on social media in Kenya

One may also ask what about photos posted on social media? As a social media user, you ought to read and understand the terms and conditions of using a given social platform before resolving to use it. However, a social media company can’t take an image from someone’s social account, and claim that in posting it to the account, the photographer issued a non-exclusive, transferable, royalty-free or worldwide license to use the contents in that account. 

In all instances, understand that unless a license has been provided or obtained for the use of the image by the copyright holder, publishing on social media, a website or print could constitute a copyright infringement. The general rule is that you violates a person’s right of publicity when, without permission, you use his or her photo for your own benefit. 

Finally, as a photographer whenever you are caught in a situation that requires you to prove you are the legitimate owner of an image that is being used by unauthorized users, you need to provide as much information as you can to prove that you are the person who captured the image. Learn more about Copyrights in Kenya on MMS Advocates weekly publication.

By Andrew Wanga 


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