Picture: ISTOCK
Picture: ISTOCK

SA has a rich photographic history stored in books, films, archives and art galleries. However, most important photograph negatives are privately held and waiting to be discovered like those published in Basil Breakey’s Beyond the Blues, or Ian Bruce Huntley’s Keeping Time.

A photographic heritage resource is the missing link. A building with a digital facility that holds, preserves and provides access to copyrighted works of historical interest could help define the future of photographers. It could also preserve work that risks being lost or taken abroad.

A well-functioning archive is the Hugh Tracey International Library of African Music in Grahamstown. A complete digital copy of its collection is backed up in the Mountain Archives of Norway.

The Legal Deposit Act enforced by the Department of Arts and Culture could be used to create functional archives that are maintained for future generations. The department does good work in archiving printed news publications, government documents and books.

Several  SA photographers gathered recently at the closing of the month-long Jazz Expressions exhibition, hosted by photographer Siphiwe Mhlambi. It featured several discussions with photographers and the last one, on copyright and photography, was moderated by cultural curator Rashid Lombard.

As co-founder of the Cape Town International Jazz Festival, Lombard created a platform for a legacy of jazz photography. The festival has published several hard-cover photographic volumes and has an annual photographic exhibition, DuoTone Gallery, and a five-day workshop. The late Peter Mckenzie was a tutor at the workshop for many years.

“Our professional standards require ongoing refinement and alignment, especially in our understanding of rights and the value of our work,” Lombard says.

The debate of “fair use” versus “exploitation of works” was pushed into the spotlight recently when American Hank Willis Thomas adapted archival photographs by South African photographers Graeme Williams, Peter Magubane and others.

Was the adaptation produced in SA, it would have infringed copyright legislation. In the US, fair use law is enshrined in the US Copyright Act of 1976. It is tested by four factors: the purpose and character of the use; the nature of the copyrighted work; the portion used in relation to the copyrighted work as a whole; and the value of the copyrighted work.

Historically, US  copyright law is regarded as the most liberal, European law more “left” and British in the centre. Moral rights are a cornerstone of the civil law copyright regime and were signed into law in Switzerland in 1889 at the Berne Convention for the Protection of of Literary and Artistic Works.

The US did not join the Berne convention until 1989, and when it did it had to recognise moral rights. In 1990, the US passed the Visual Artists Rights Act which gives “visual artists the right to claim authorship in their work and to prevent the use of their name in association with a work. In addition, artists are granted the right to prevent the intentional distortion, mutilation or other objectionable modification of their works.”

SA's copyright law identifies three primary rights holders for any photograph: the photographer (composer), the commissioner and the subject. 

There is often tension between photographers and their subjects. Lombard described a court case involving musician Rod Stewart, who had used a photograph given to him 20 years early as the audio visual backdrop to his most recent tour. The owner of the photograph is suing and the case is not yet settled.

The Jazz Expressions exhibition featured 90 black-and-white jazz portraits of mainly local musicians performing at events, particularly the Joy of Jazz Festival. The large framed images were on sale for between R8 and R30,000, depending on the fame of the musician pictured.

Mhlambi, who was mentored by Mike Mzileni while working at City Press, explains that the subjects of his photographs do not receive proceeds from the sales of his images, but are free to use them at their discretion, particularly for publicity.  “The fundamental part is passion. It is work, it is money, it is time invested,” he says.

Photographer Oscar Gutierrez says his photos were given to  pianist Andile Yenana to use for his publicity. However,  posters were printed without crediting Gutierrez and they had to be taken down.

Increasing access to the internet and social media has made high-quality images very accessible to anyone with a cellphone. While this has given a voice to many more people than before, it has threatened photography as a profession.

“Photography was once the hobby of the rich. Digital has made it more accessible. There are millions of images taken every single day. Roald Dahl, who was a war photographer, said it is the art of the talentless,” says professional photographer Rafs Mayet.

The advent of user-generated content in the digital world has made copyright highly relevant. “We all live in a click, copy and paste world. There is no marginal cost with a click and no marginal value in paste,” says Lombard.

There is no legislation protecting SA content in the digital environment. The regulation of online contracts could change this and give photographers a share in any online revenue made from their work.

Settling copyright claims for photographers has been complicated by the Copyright Amendment Bill’s recommendation of the establishment of a copyright tribunal.

“Historically this has not worked. Internationally, the small claims court is used successfully because cases can be quickly convened, heard and implemented,” says copyright lawyer Graeme Gilfillan.