To whom do the copyright and related rights belong?
In accordance with the Copyright Act, the author is always a natural person, i.e. a human being. The author of a photographic work is taken to be that person, who has taken the photograph; who has pressed the shutter of the photographic or other comparable device. If more than one person partakes in the creation of the photograph, for example so, that one defines the subject and angle of the photograph, another chooses the lenses and a third presses the camera's shutter etc., it is seen, according to related legal literature and the opinion TN1991:6 of the Copyright Council, that rights to the photograph may be assigned jointly. This is called a joint work. The copyright to a joint work belongs jointly to the authors of the work. The authors of a joint work may only decide on the transfer and exploitation of the work's copyrights jointly.
The related rights of a photograph do not require creative and independent expression and therefore it can be born both to the creator of a photograph, i.e. a natural person, as well as a legal or juristic person, such a company of a society, in a situation where there is no photographer and the photograph has been created by a technical device.
Photographers's economic rights
The author of both a photographic work as well as an ordinary photograph enjoy economic and moral rights. Economic rights give the author the exclusive right to control the photographic work. A photographer as well as the author of a photographic work, has the exclusive right to reproduce the work and make it available to the public. Reproduction is, for example, scanning a photograph or film, or downloading a photograph from the internet to the memory of a computer. The biggest difference between an ordinary photograph and a photographic work is, in practice, in the length of their periods of protection however the exclusive rights of a photographer are also to an extent shorter than the exclusive rights of the author of a photographic work.
The rights of the author of an ordinary photograph are restricted to controlling the reproduction of the photograph and making it available to the public. They do now, however, have the right to control the reproduction of the work in another art form or by another technique. Consequently, they cannot prohibit another person from painting a portrait from a portrait photograph taken by them.
When a copy of the work, a photographic work or ordinary photograph, has with the consent of the author, been permanently sold or otherwise permanently transferred, the copy may be used for public exhibition of the work. The expiry of this right has been discussed above in connection with fine art.
Unless otherwise agreed, copyrights belong to the author also after the transfer of the work of art, that is, the transfer of the copy of the work. In accordance with the explicit provision of the Copyright Act, the transfer of a copy of a work of art does not entail the transfer of copyright. The person who has acquired the copy of the work may therefore not, for example, manufacture post cards, blow-ups of the work, or upload a copy of the photograph to their website for viewing. The person who has acquired a copy, has only acquired the right of ownership to one copy without any related copyrights, unless otherwise agreed.
It is worthwhile remembering that the copyright to a photographic work of art or related rights to an ordinary photograph, and the right of ownership to the photographic material should be kept separate of each other. Even though the copyright to the photographs might have transferred to a client, the right to ownership, for example for the negatives, might still remain with the photographer. However in employment, the employer may own the material, even though the copyright could still remain with the author of the photograph. The transfer of rights for photographs created or reproduced by a photographer under employment will be resolved in accordance with the employment agreement, collective labour agreement, prevailing practice in the industry or prior practice between the parties.
The author's moral rights
The moral rights of a photographer protect the author's person. The most important moral rights are the right to attribution and integrity.
The right to integrity requires that the name of the photographer is mentioned in accordance with good practice and that the photographic work or photograph may not be adapted or made available to the public in a manner or context that is offensive to the author's artistic quality. The last-mentioned means that the photograph may, for example, not be cropped of otherwise treated in a manner that is offensive to the author. The photographer also has the right to control the photographic work or photograph in adapted form. The manipulation, cropping, altering or adapting of a photographic work or photograph requires the consent of the photographer.
In its opinion KKO 1994:99, The Supreme Court considered the relative responsibilities of a photo agency, an advertising agency that received the right of use to a photograph from the photo agency and finally a magazine who published the photograph.
The advertising agency had acquired the photograph from the photo agency for a car advertisement, whose graphic expression comprised mostly of a photograph depicting the milieu of an artist's studio and two published sculptures by the sculptor Eila Hiltunen. The photograph had been acquired with single publication rights and under the terms indicating that ¿the client is responsible for acquiring the rights to use the names, persons and trade marks depicted in the photographs." This transfer was taken to mean the transfer of a right to the photograph, intentionally leaving the task of clearing up the rights' restrictions related to the subject material, to the advertising agency.