Fashion for 'Vogue', Florence, 1964 [II] by Brian Duffy

A question of copyright

Giles Huxley-Parlour on the rights and wrongs of the legal technicalities of photographic ownership

I have recently been through a fascinating legal wrangle with Conde Nast over the ownership of work that my gallery exhibited, on behalf of a photographer that we represent. It goes to the very heart of the photography market – who owns a picture? Who owns the right to print it? Who owns the right to sell it? How much do outdated laws still govern these questions, and quite what is to be gained by pursuing the point to the final degree? In fact, at what point does copyright become irrelevant?

The photographer Brian Duffy exhibited at my gallery in October last year, and everyone was pretty excited. Duffy had effectively vanished for 30 years, having dropped photography for woodwork – he became one of the country’s top restorers of antique furniture. Previously, however, he had been a huge force in Britain’s photography scene. In the early sixties, he formed part of the unholy triumvirate, the “black trinity” of fashion photographers – David Bailey, Terence Donovan and Brian Duffy. In 1979 he committed career-suicide by burning huge numbers of his negatives in a fit of anarchy. Some escaped the fire, however, and ours was to be the first exhibition of them – ever. Duffy was chuffed to bits that everyone was backing him and, as a modest man in his mid seventies, quietly enjoying a bit of time spent in the limelight – there were articles in several broadsheets and glossies, a BBC documentary, TV interviews. Most importantly however, his long-forgotten work was getting the exposure it deserved.

We spent hours choosing the 50 pictures, agonising over a selection that we were all very pleased with in the end. A catalogue was produced, printed and mailed, a party was organised, the whole shebang. Then, the day before the opening, a letter arrived on my desk from Conde Nast that calmly instructed me to pull down half the exhibition – they were very sorry, but they couldn’t possibly let the show go ahead. ┬áThe issue stemmed from the fact that half the shots in the exhibition were from Vogue magazine, for which Duffy worked for the first half of the 1960s. Duffy had assured us that he owned the copyright to the photographs (something we always check before putting on an exhibition!), and was mystified by the letter’s contents. It simply stated that Duffy had taken these photographs whilst under contract, and that said contract assigned Conde Nast the copyright for all images they commissioned from Duffy, in perpetuity. We were going to be sued, taken to the cleaners, closed down, squashed under-foot, unless we destroyed the prints or ‘surrendered’ them to Conde Nast.

This piece could go on for pages and pages if I explained the exact nature of the legal wrangling that ensued, but there are certain points in particular that I would like to focus on that I find fascinating..

We have since taken the prints off sale, although we went ahead with the show at the time, because it seems that Conde Nast have a very good case for owning the copyright to these pictures. If, in a court of law, it was proven that they did own it, then it would be illegal for Brian Duffy to make prints of his own work without their permission, and of course we would be in the wrong too. We do not have spare tens of thousands of pounds to prove it either way, and so we have relunctantly fallen into line. But, it is not because Duffy signed a contract that they have a case – he had always maintained that he had never signed anything. Indeed, they could not produce anything to show us, and it looks like Duffy never had an official contract with them at all. We thought that this would work heavily in our favour, and breathed a sigh of relief when all they could show us were payslips that related to the shoots in question. However, we were wrong, because it was these that caused the biggest problem. I suspect that their lawyers too were learning as the case progressed, because it was only after several accusations from them that they hit upon the key to their prosecution. The 1956 Copyright Act, under which all the photographs in question were taken, goes to great lengths to protect the ‘author’ of a work of art – quite rightly. You might think that this would be in our favour. But in the Act it makes very clear that the ‘author’ of a photograph is the person, or company, that paid for the film. Amazingly, they still had the receipts for the film used during most of the shoots. Simple as that.

It was this that persuaded us to take the prints off sale. It was an absurd rule, and was taken out of later Acts, but it looked like Conde Nast could win the case on this simple, depressing technicality. Can you imagine arguing that you owned the copyright in perpetuity to one of Picasso’s drawings because you lent him a pencil to do it with? The whole thing was mad, and maddening.

It is probable that many other photographers in Britain do not actually own the copyright to the pictures that they took under this Act. Most were working for magazines or papers, and most would have been happy to accept film from their employers. Copyright probably never occurred to them then anyway, and I bet that it was never mentioned by the companies that commissioned them. Many of these companies have since disappeared, but it is likely that most photographers from the period selling new prints today do not technically have the right to do so. However, they carry on – in my opinion quite rightly. This is because either nobody knows about this obscure, absurd law (photographer and still-existing company included), or because no-one cares/pays attention to it. Any money to be gained by chasing some-one down would be far out-weighed by the cost of actually doing so and the rather sad, desperate feeling that it would leave inside. If ever a law was to be broken, surely this would be a good contender.

The reason for this is as follows – the pictures that were took of sale were doing absolutely NOTHING until we came along. Conde Nast would never, ever, ever, have used them for anything. They were essentially dead images. If they had been regularly generating income from an archive of Duffy’s pictures then it would be different matter. But, most had simply sat in a box in Duffy’s attic for forty years. They turned down an offer of co-operation, whereby Duffy would pay a certain percentage to them every time a print was sold, and have behaved in a strangely dog-in-the-manger fashion about it all. One could argue that, if they do own the copyright, it is their decision about what they do with the images and that they are perfectly entitled to sit on them and do nothing with them. In most cases, I would agree with this, but not when it is at the expense of the artist. Essentially, this part of the Copyright Act 1956 was designed to protect the long-term business interests of the company that commissioned or produced artwork. But if the artwork no longer has any real use for said company, then it should fall back into the hands of the artist. There has to be a point at which copyright becomes meaningless, and I believe that this is it.

The final point that I would like to make about this is the human cost to this debacle. We at the gallery will not suffer too much – a few legal bills, a bit of time wasted, and we’ll be on to the next photographer. But Duffy, in his seventies and sick with a degenerative lung disease, is left with half of his archive unusable. He doesn’t have the spare cash to take Conde Nast on in the courts, and without doing so they will pursue him for damages at the slightest opportunity. Just when he was, at last, starting to celebrate his wonderful career, he has been squashed under-foot by the big corporation. He can’t publish a book, make a film, make money from selling prints – he can do absolutely nothing with much of the best of his life’s work without their say-so. Something here is surely not right.

Above image: Fashion for ‘Vogue’, Florence, 1964 [II]

Giles Huxley-Parlour, Director of Photography, Chris Beetles GalleryGiles Huxley-Parlour is Director of Photographs at the Chris Beetles Gallery, London. He has organised major exhibitions of such important photographers as Cecil Beaton, Bill Brandt, Norman Parkinson, Snowdon, Terry O’Neill, Edward Weston, Terence Donovan and many more. He currently organises up to eight commercial exhibitions per year, and is responsible for establishing the Chris Beetles Gallery as a major force in the international photography market.