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Does Copyright Stop Me Taking A Photo?

What Happens If Someone Else Has Taken It Before?

The idea behind copyright is to stop other people from using your photograph without your permission. One of the ways it does this is to prevent them copying your photograph.

You can copy a photograph by using a scanner, or even a camera and taking a picture of it. Or you can copy a photograph by setting up the same scene, background, lighting and subject matter. This isn’t an identical copy, but it’s close enough for copyright law.

Copyright stops other people copying our photographs, but what happens if we are taking a photograph that someone else has photographed before? Are we breaching copyright?

You Can’t Copyright An Idea

If the law worked this way, then wedding photographers would be in deep trouble because they all photograph brides in front of churches!

However, a bride in front of a church is an idea or a concept. What sort of church? What type of bride? What type of lighting, weather, clothing, surroundings etc, etc. There are many things in addition to the bride and the church which make these photos different.

So, every photograph of a bride in front of a church is, generally speaking, unique and somebody else’s photograph of a similar (but different) bride and church will not stop us from taking our photograph.

Similarly, we can continue to take our photographs of the Opera House or families running on beaches. However, when we take our idea and photograph it exactly like someone else’s, then we may indeed be breaching copyright.

A Direct Copy

Let’s return to the photograph of a bride in front of a church. Let’s say the photograph is very specific with a particular hair colour, make up, veil, dress, shape of church, type of lighting... If everything is copied, right down to the pose and the expression of the bride, then your copy could be breaching the other photographer’s copyright. In other words, you have started with their photograph and made your own. This is illegal.

It is also unlikely to happen to wedding photographers, but commercial and advertising photographers are often shown the work of another photographer and asked to copy it. This is also illegal.

If the client insists on a direct copy, you should walk away from the job. Fortunately, you can usually explain the situation to the client and then work on a different image that achieves a similar outcome. An idea can’t be subject to copyright, only the execution.

This is general information only. We do not know your specific financial or legal situation and we are not providing you with advice. As such, this article should not be relied upon as legal, financial or accounting advice. Please use this article as a conversation starter with your own adviser.

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