Both under the old and the new law the photographer is not the owner of the copyright, when the photograph is ordered by the sitter or some other person and is to be paid for. The Act of 1862 used the words " for a good or valuable consideration." The question arose, what is a good consideration ? Money, of course, is a " good consideration "; and it is still good when the photographer accepts a smaller rate of payment than usual. The copyright in that event is still the sitter's, unless the photographer obtains it by express agreement. Nor is actual payment necessary to give the sitter the copyright ; it is sufficient that he agreed and is liable to pay. Difficulty arose when no payment was intended. A photographer who without charge photographed an actress, giving her some complimentary copies, and selling others, was held to be entitled to the copyright, the actress's permission to take the portrait not being a ' good or valuable consideration ;" and a person to whom the actress gave a print was held to be committing a breach of copyright by reproducing it in a magazine. On the other hand, where a photographer took photographs of a school at his own expense, the proprietor being at liberty to purchase copies or not, he pointing out what rooms should be photographed, posing the cricket eleven, etc., it was held that there was " good consideration " and the photographer was not the owner of the copyright.
The words of the new act are slightly different. " Where in the case of an engraving, photograph or portrait, the plate [which includes negative] is ordered by some other person and is made for valuable consideration in pursuance of that order, then, in the absence of any agreement to the contrary, the person by whom such plate or other original was ordered, shall be the first owner of the copyright." It will be seen that the sitter, or other person who orders the photograph, is the first owner, but not (unless the negative is to become his property) the author. Hence, to maintain copyright in an unpublished portrait it may be necessary to show that the photographer was a British subject or resident in the dominions to which the act applies.
The language of the new act is a little unusual - " the plate was ordered." The sitter does not usually order a negative ; he orders " photographs ' or prints from a negative which remains the property of the photographer. But the courts will probably hold that you " order " a negative, when you order photographs for which the negative is made, and that you so become the owner of the copyright although the negative is not yours.
Although the photographer employed to take a portrait remains the owner of the negative, he is not entitled without the customer's authority to sell, dispose of, or publicly exhibit copies of the photograph, and an injunction may be granted restraining him from doing so. The sitter cannot claim the negative ; the photographer cannot use it without permission. He must not sell it, or by way of trade expose or offer it or prints from it for sale or, again by way of trade, exhibit in public ; and exhibition in his window or probably in his studio is " public." The rights are the same as to surplus negatives, or negatives not approved, where, as generally happens, several negatives are taken at a sitting from which the sitter is to make a selection, e.g., in commercial photography, for catalogues, the price is sometimes quoted as so much for the negative and so much for each print. In such a case the negative may become the property of the customer.
The amateur who takes a portrait of a friend, is, of course, the owner of the copyright ; he may restrain any one making copies, he may even sell the copyright and there is nothing (except the law of libel and the loss of friendship) to prevent his exhibiting his work. One odd result seems to follow from the law in the case of groups, which, as every one knows, are apt to contain good portraits.
Finally, my Hiawatha Tumbled all the tribe together, (Grouped is not the right expression), And, as happy chance would have it, Did at last obtain a picture Where the faces all succeeded ; Each came out a perfect likeness.
So runs a passage which is doubtless a classic in the literature of photography. Assuming Mr. Hiawatha to have been paid for his work, the customer became the owner of the copyright of the portrait of every person photographed. The man who orders and pays for the picture may if he chooses prevent a member of the group obtaining copies of the photograph, however well he or she " comes out " in it ; or, worse, he may copy, exhibit, -even publish, the portrait of any one there, though the subject himself calls it a caricature and faintly hopes he " does not really look like that."
It is a breach of copyright not only to reproduce the whole photograph, but even " any substantial part thereof." The courts will probably hold that every portrait is a " substantial part " of a group ; which of us so photographed would think otherwise ?