Photographer or simple button presser? It’s a burning issue

Last Friday was World Photography Day. So what better time to dive into a story that popped up last week on PetaPixel – one of my favorite photography sites.

It involves photographer Clancy Gebler Davies and his self-portrait project HerSuit. Due to being completely wrapped up in hair, Davies hired photographer William Corbett to handle the camera for the shoot.

This is where the story gets interesting. Davies claimed that Corbett was only hired to physically press the shutter and had “absolutely no editorial input”. However, Corbett, a 40-year-old photographer, says his role was quite different and determined key camera settings such as lens, ISO and shutter speed.

It all came to a head when Davies won the prestigious 2021 Female in Focus award from the British Journal of Photography, only to have the award taken away when Corbett claimed authorship of the photo.

copyright analysis

Analyzing the story presents an obvious difficulty, in that there are two conflicting accounts of Corbett’s involvement. We don’t know if he just pushed the button or had a hand in the creative process of taking the shot – but let’s take a look regardless.

Australian law section 10 Copyright Act 1968 states that “the author, in relation to a photograph, means the person who took the photograph”. This definition is present for historical reasons, because before May 1, 1969, the copyright in a photograph belonged to the owner of the material on which it was taken (i.e. the film or the physical plate) .

It is settled law that when one person has an idea for a copyrighted work, but another person executes that idea, then the second person owns the copyright. Copyright does not protect mere ideas. In the case of 1890 Kenrick & Co vs Lawrence & Cothe author was seen as the designer of a painting, rather than the person who could not draw but instructed the designer as to subject and treatment.

This contrasts with the situation of a transcriptionist, who takes verbatim material dictated by another. In the case of 1938 Donoghue v Allied Newspapers Ltd, the dictator and not the transcriber was the author for copyright purposes. In the words of the court: “A mere amanuensis does not in any way become, by repeating the author’s language word for word, the owner of the copyright.

Even with this background, the factual situation remains unclear. It was certainly Davies’ idea:[Corbett] had no involvement in concept, planning or financing. But when Davies claims that after two or three frames she brought Corbett over and showed him the footage, we don’t know if she was giving camera instructions and positional adjustments Corbett should make, or if she was checking just if Corbett had taken a picture she was happy with. Most likely, we will never know.

statutory intervention

Beyond this analysis of the first principles of the copyright situation, it is worth noting Article 35(5) of the Copyright Act 1968. When a person is paid to photograph another for private or domestic purposes, it is the commissioner and not the photographer who holds the copyright.

This is of course irrelevant to the British Journal of Photography award, which concerns paternity rather than copyright ownership. Either way, that might not apply to Davies. If Davies is a professional artist, chances are this photograph was not for her private or home use – but it’s worth bearing in mind.

remove points

The conclusion is obvious: first settle the copyright ownership in writing. As copyright in Australia can only be transferred in writing, any agreement changing the default ownership position must be documented. The other point to remember is that the person who executes the idea, rather than the person who originally came up with it, owns the copyright.

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