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June 22, 2015

Who owns the copyright of your wedding photos? For that matter, who owns any of the photos that you might have commissioned someone else to take? The recent case of Wang Choong Li v Wong Wan Chin [2015] SGHC 128, where the plaintiff sued a photo agency for copyright infringement regarding her wedding photographs, raises these questions. 
- Koh C-u Pinn, Arielle Law Corporation

Wedding Photos and Copyright


In the case of wedding photography, and even photography in general, does the customer own the copyright?

Were the photographs commissioned?

The most important enquiry is whether the customer commissioned the photographs in question. This decides who owns the copyright of the photographs. If there is no evidence that the photographs were commissioned, the copyright of such photographs would lie with its author. The natural “author” of a photograph is the photographer.
For the work to be commissioned, it has to be produced as the result of an agreement made for valuable consideration. If the work was simply bought after it was made, then it was not commissioned.
To make things clear, the customer who commissions the photograph should be in a direct contractual relationship with the photographer. If the contract is with a photography agency, then the customer should make sure that the photographer is an employee of the agency.
If a photography agency commissions a photographer, working as an independent contractor, to take photographs on behalf of a customer of the agency, the copyright may end up with the photographer or the agency. The customer may not own the copyright as he did not directly engage with the independent photographer. The customer’s contract is with the agency alone, and not with the photographer. The customer can argue that the agency is the customer’s agent, such that the customer can benefit from the contract between the agency and the independent contractor. However, this is a more complicated argument to make.  
Where the work has been commissioned for a particular purpose, and this purpose has been communicated to the author of the work, the author will have the right to restrain the commissioner from using the work for purposes other than the particular purpose that was communicated to the author. This protects the economic interests of the author.
Photographic works can be jointly commissioned by two or more individuals. In instances where several people own the copyright to a work, any of them may sue singly for copyright infringement. Also, one joint owner of the copyright cannot grant an exclusive licence without the consent of the others.

License to use the photographs

Even where the customer owns the copyright, a photography agency may be able to use the photographs if it can show the existence of a license to use the photographs for marketing purposes. The license may be based on a contractual term, or implied based on the facts. The legal test for implying a term is rather strict.

Ending Advice

The simplest way to prevent a misunderstanding in the use of photographs is to have the terms written down explicitly. As a customer, make sure that the copyright is assigned to you by the author. As an agency, inform your customers and write down contractually that you reserve the right to use the photographs for marketing purposes. That is the best way to avoid an expensive lawsuit.   
Koh C-u Pinn Picture
Koh C-u Pinn is a director at Arielle Law Corporation, a boutique law firm that provides individualized services tailored specifically to your needs. 

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