§ 7 German Copyright Code states, that the author is the creator of the work. However, most works in the creative industries today are collaborative efforts. A fashion editorial alone takes (at least) a photographer, a model, a stylist and an art director. But if all these people worked together to create the final picture, all with varying degrees of influence on the final outcome, who is the author?
The rules of authorship
Authorship pertaining to a work is constituted by the “real act” of personal intellectual creation. This means, that the creation needs to be made by a human, have an aesthetic or informative meaning, be perceivable by the five senses (no matter how fleeting) and bear the stamp of the author’s personality.
According to § 2 I Nr. 5 UrhG, photographs are examples of such works. Consequently, the photographer is the author of the finished picture.
However, § 8 states, that if multiple people have jointly created a work without their shares being separately exploitable, they are co-authors of the work. A joint work is created when two or more people contribute copyrightable authorship to a project with the intention that they are making one final work.
According to the German Federal Court, joint creation in this sense requires cooperation aimed at agreeing on a common task and subordinating oneself to an overall idea. For the emergence of a co-author’s right, it is therefore essential that each participant in the work has the will and imagination to help create a unified work and to jointly transform this imagination into a single result. Someone who just acts on the ideas of someone else without influencing its future meaning in a substantive way cannot be co-author. They are simple support so to speak.
Our prime candidate: the art director
In fashion and advertising photography, it’s the art director’s job to exercise creative control over the shoot that’s being produced. They develop the overall vision for the shoot: creating a visual language, tone and key messaging. The director is heavily involved in selecting talent, props, backgrounds. If the project involves video, the director is consulted during the curation or development of music and narration.
It’s the photographer’s job to communicate with them in order to get the results the client needs. Fashion is commercial work after all. Even though photographers get booked for their style, they get paid to create the images the director needs.
A lot of the creative choices are tackled during pre-production in the brief and mood boards. In practice the director communicates their ideas to the photographer in terms of results. How to achieve them is the photographer’s job. For example, the director will brief the photographer on the mood they need the models to express, but the photographer is the one who directs the models. They might give reference images for how the light should look, but the photographer is the one who tells the assistants how to set up the actual lights. The might directly brief the make-up artist or stylist, but a good photographer will keep their eye on decisions made there and jump in when things take a wrong turn.
So, and what does this mean in terms of authorship?
When the directors ideas and suggestions are concretized and developed to such an extent that they in turn represent personal intellectual creations, a co-authorship or editing relationship comes into consideration. The boundary is fluid. Idea givers and work stimulators repeatedly claim (co-)authorship and wish to be involved in the exploitation of the work. With directors, the distinction between creator/idea provider is paramount. If the activity of the provider of an idea is limited to the communication of mere tips, which as such are only inconcrete ideas, there is no room for co-authorship for lack of creative work.
In practice, it’s the photographer who almost always has the last say. The photographer is who turns the inconcrete ideas given by the director into a concrete product. But in individual cases it is indeed possible to assume co-authorship, if the director is present on set and gives such extensive directions that they can be assumed to be of similar importance to the concrete realisation of the picture as the photographer.
What about the models?
Sometimes you hear from people who have had their pictures taken: these are my photos, I am in the photo, I paid for the photos, so they are mine and I can do whatever I want with them. That’s not correct. The model or other persons shown are never the authors. Of course they have the right to their own picture (§ 22 KUG – art copyright law). But only the photographer is entitled to copyright. The photographed person has – unless a license agreement has been agreed upon – only the ownership of the prints and the legal right of reproduction ,§ 60 UrhG, which e.g. allows picture-from-picture for family members, but no internet use.
Nope. No copyright for them. Just as the designer of a photographed chair is not the picture’s co-author, the stylist merely has a creative say on the object of the photo and not the picture itself.
Clients aren’t co-authors either. Companies can’t be authors under German law in any case. Furthermore, even if the client happens to be your boss, they only get rights licensed to them by force of the employment contract, § 43 UrhG. A work-made-for-hire doctrine like it is applied in the U.S. is not accepted in Germany.
One last tip
In any case of a fight over the authorship, one mustn’t forget one more thing. According to § 10 UrhG, whoever is designated as the author on the work pieces, is assumed to hold the copyright. This presumption applies in the relationship between co-authors as well. Someone claiming co-authorship consequently bears the burden of proof relating to their share of creative work and its importance.
Image: Chalo Garcia on Unsplash