Who Owns the Copyright – the Photographer or the person who was Photographed?

The Photographer Shmuel Rachmani recently filed suit for copyright infringement against Tal Brody, the former captain of basketball team Maccabi Tel Aviv, after Brody posted on his Facebook page the mythological photograph of him holding up the European Cup in Belgrade in 1977. Brody filed a counter-suit, in which he maintained Rachmani had been selling the photograph and using his image without any authorization in order to generate unlawful profits for himself. At the end of the proceeding, the parties reached a settlement, given the effect of a judgment, whereby both parties would be entitled to use the photograph for “personal use.”

This case is just an example of the potential legal exposure when one makes use of a photograph displaying his or her own image without the permission of the photographer.

The Israeli Courts have long acknowledged that even a photograph that does not meet artistic standards constitutes a photograph subject to copyright protections under the law, as long as it has some originality. In addition, it was held that the copyright owner holds the exclusive rights to reproduce, publish, market, and permit public use of the photograph, as well as to issues licenses to third parties to do so. Further, the copyright offers the creator a collection of rights and protects him or her when need be, up to a period of 70 years after the life of the creator.

Therefore, under the law, the first owner of a creation’s copyright is the creator. Still, the law has several exceptions, such as “ownership of a commissioned piece,” i.e. a portrait or photograph of a family event or another private affair that was created under commission. The first owner of the copyright in such an art piece is the commissioner, unless it was agreed otherwise. It is important to note in this context that the ownership right of the commissioner does not apply to a photograph that was made at the photographer’s initiative (such as when the photographed person consented to the photographer’s offer to photograph him or her).

Does that mean someone photographed at a photographer’s initiative has no right to use the photograph displaying his or her image?

In certain cases, though the photographer holds the photograph’s copyright, the use made by the photographed individual may constitute fair use.

For such purposes, it is necessary to examine:

(1) if the photograph’s purpose and character was commercial or not intended for profit;

(2) the nature of the piece used;

(3) the scope of use, qualitatively and quantitatively, in proportion to the entire piece; and

(4) the effect of the use on the value of the piece and its potential market.

For instance, fair use of a piece is permitted for purposes of self-study, research, critique, review, journalistic reporting, reference, or instruction and examination by an educational institution.

In this context, it was held that in order to take advantage of the fair use defense, one must give credit to the photographer and expressly note his or her name.

Thus, if a photographer took a photograph of a person in public, the photographer owns the photograph’s copyright. Should the photographed person wish to use the photograph, he or she must seek the permission of the photographer or show fair use – i.e. give the photographer credit as well as proper consideration for the use of the photograph (unless the photographer authorizes use without consideration).

It should be noted that, under the law, if a copyright or right in equity has been infringed, the court may grant the plaintiff compensation without proof of damages of up to NIS 100,000.