Wednesday 16 November 2011

Photo-shoots and inclusion of copyright-protected works: a reader asks

A good example: the Gigi album cover on the
album cover of Pink Floyd's Ummagumma
A reader writes with the following question:
"Does the principle of exhaustion of rights enable someone to prevent a copyright owner from asserting his rights in props which are being for a photo-shoot -- for example where a painting, a sculpture or a book appears in the background on a table in an advertisement? Would there be any kind of defence to a copyright infringement claim?  I mention the exhaustion of rights principle -- but I know that not all rights of a copyright owner are exhausted just because the distribution right may have been exhausted!".
I offered my own answer, and was told that the reader has received advice both that the exhaustion doctrine applies and that it doesn't. On the facts as spelled out here, what do readers think? (Readers from outside the European Union: do please state your jurisdiction).


Andy J said...

I really don't see how exhaustion of rights can be said to apply when a work is copied in this way. Exhaustion of rights applies to the legally owned work itself, and the second (and subsequent) owner's right to dispose of the work not being constrained by the copyright owner's terms and conditions on resale, lending etc. The fundamental CDPA Ss 16-28 rights are not altered when (potentially infringing) copies are concerned.
The only possible defence would seem to be s 31 incidental inclusion.

enric enrich said...

Hello. point of view from Spanish Copyright Law.
Reproducion of a work in another work without the author's consent is permited only for works which are in public spaces (for example a sculpture in a street) and are reproduced in other's audiovisual or photographic works.