KKO 1988:82 The work of Krystyna Rudzinski was granted a copyright protection.
An advertisement that offended Krystyna Rudzinki's work.
The Copyright Act protects creative work and its authors. A copyright is born when a work is created. A copyright creates "the exclusive right to control the work by reproducing it and making it available to the public." The work is the independent and original result of its author's intellectual creative work. Works may be paintings, drawings, films, musical compositions, cartoons, choreographies, written and oral presentations, maps, photographs, illustrations, products of industrial art, explanatory drawings and computer applications. This is an exemplar list. A work receiving copyright may take any kind of form. The receipt of copyright requires only that the result of the intellectual creative work is independent and original, in which case the work meets the prerequisites of originality. In practice, the threshold for this is rather low. Almost all fine art, therefore, enjoys copyright protection. Illustrations and cartoons, too, must be independent and original, in order to meet the prerequisites of originality and enjoy copyright protection.
Works of fine art may be, for example, paintings, sculptures, drawings, textile or graphic arts, installations, works of environmental art, engravings, xylo and lithography, works realised by collage and mixed media, works of environmental and ephemeral art, sketches and other similar works. Illustrations and cartoon art can also be regarded as works of fine art. Video and multimedia works are considered audiovisual works and are discussed in the section on film. Determining whether a work is fine art, audiovisual, literary or belonging in some other category, must be resolved on a case-by-case basis. For example, if a fine artist illustrates a book on plants, the illustrations may be protected as explanatory drawings, in which case the prerequisites of originality are assessed by slightly different criteria, as explanatory drawings are protected as literary works and not works of fine art. Also the independent and original work of an amateur may receive protection.
Copyright does not protect subjects, ideas, principles or technical choices, such as material experiments or colour choices, but the independent and original form in which the work has been expressed. As copyright does not protect ideas or subjects, two people may paint a painting or draw a comic on the same subject, using the same materials, without violating copyright. Copyright protection is also granted to drafts, provided that they meet the originality prerequisites. Copyright is born simultaneously with the creation of a work. Copyright protection may also be granted, for example, to storyboards and synopses, provided that the prerequisites of independence and originality are met. It is insignificant, for the purposes of copyright, on which storage format the work appears. Works of fine art that appear on open computer networks, such as the Internet, are equally protected by copyright as those painted on canvas or carved from wood.
The originality requirement has traditionally been regarded low for works of fine art. For a work of fine art to enjoy copyright protection, it must meet the prerequisites of originality, that is, the work must be the result of the author's independent and original intellectual creative work. High artistic quality is not a requirement. The Copyright Council, in its opinion, considered as works of fine art receiving copyright protection, among others, a drawing of a stylised little girl (Opinion 1991:4).
The prerequisites of independence and originality are generally considered as met, if it can be assumed that no-one else undertaking this work would have ended up with a similar work. Copyright protects only the external appearance of a work, that is, the manner in which the author has expressed themselves. When a work of fine art work receives copyright protection, the author has, in accordance with the Copyright Act, the exclusive right to control the work and its use.
In accordance with the Copyright Act, explanatory drawings are protected as literary works. Under the Act, explanatory drawings are seen as, for example, maps, machine and construction drawings. Explanatory drawings aim for technical clarity and their choices of subject and angle are such that it is highly probable that someone else undertaking similar work would end up at the same solutions. Explanatory drawings are also associated with a quality requirement. This requirement is demonstrated by an explanatory use of the word. Explanatory drawings may receive copyright protection under the same conditions as other works, i.e. a condition for the protection is that the explanatory drawing meets the prerequisites of originality, or is an independent and original result of creative work in such a way that no other expert could have ended up presenting the same things in drawings similar in form.
The Copyright Council has considered the copyright protection of explanatory drawings in its opinion 1996:2 (the illustration copyright of a medical textbook/handbook). The Copyright Council decided that the explanatory illustrations referred to in the medical text, which depicted, among other things, the human respiratory system and lung function, did not meet the prerequisite level of originality and thus remained excluded from copyright protection.
In its opinion 2002:4, the Copyright Council decided that the drawing of the habitat of the sea-buckthorn, which illustrated a scientific article, didn't demonstrate the independence and originality required of a work. In its opinion 2004:2, the Copyright Council noted that the illustrations and schematic in the Canon Ixus 400 digital camera instruction manual didn't demonstrate such independence and originality that is required for copyright protection.
Image material from the decision TN 2002:4 of the Copyright Council.
Photo collage, adaptation and compilation
A photo collage may, for example, comprise of photographs, drawings and paintings, or parts thereof. For a photo collage to meet the prerequisites of originality, the work must be independent and original. In principle, however, consent is required from all the right holders for its individual parts or works. If the new work is composed of small image details, which in themselves do not meet the prerequisite level of originality, then consent is not required. The copyright of a collage author, or adaptor, covers only their own work and does not restrict the copyright of the original work. In principle, creating a collage and adaptation from someone else's work requires consent of the author of the original work.
If the activity concerns the creation of a completely new work, to whose creation the original work has provided ideas, materials and inspiration, but which does not constitute the use of the original work in the sense intended in the Copyright Act, copyright does not depend on the original work. The work likely requires the consent of the original author, if it easily evokes a feeling of likeness between the original and new work in the viewer/the person experiencing the work. When creating a completely new and independent work, this new work is not identifiable with an original. In practice, the issue must be resolved on a case-by-case basis. It is impossible to draw a clear line between free creation and dependent adaptation that requires permission. In practice, the issue must be resolved based on singular cases.
In the Supreme Court ruling 1979 II 64, a person had painted a painting, using as their model a published photograph created by B, put it on public display and sold it. In its ruling, the Supreme Court considered it evident that the painting could not have been created independent of the photograph. Among other things, the positions and clothing of the children depicted in the work, as well as the background, demonstrated remarkable similarities. On the other hand, the photograph and painting also exhibited essential differences, particularly in the expressions of the children and in that the painting was not descriptive to such an accurate extent as the photograph was. Taking into consideration that the right of A to their photograph didn't extend to its subject and that, due to the differences in a painting and photograph's methods of production, even minute visual differences essentially affect the whole, the Supreme Court did not consider B's painting a reproduction of A's photograph, but an independent work created on the basis of the photograph. B was considered not to have infringed A's copyright by their actions.
Adaptation and/or free adaptation is also discussed, among others, in the opinions of the Copyright Council 1993:22, 1993:23, 1993:24, and 2002:7. The Copyright Council opinion 2002:7 specifically related to works of fine art and dealt in part with the same questions regarding interpretation. The case concerned the creation of a music video using the scratch technique and making use of previously created works of fine art and photography.
TN 2002:7. In its opinion, the Copyright Council noted that the inclusion of adapted works of fine art and photography, under protection was, in accordance with Section 2 of the Copyright Act, reproduction, which falls under the exclusive right of the author and photographer and requires permission from the authors and photographers of the works in question, or the organisation representing them.
According to the Council, permission is required even when one wishes to include a work of fine art or photography in a compilation, as defined in Section 5 of the Copyright Act. If a manipulated visual work or photograph can be regarded as being the same work or photograph as the original work, the photographer or author of the original work has the right to control the work or photograph realised in manipulated form.
The Copyright Council also noted in its opinion that the inclusion of a work of fine art or photography into a music video is permitted without the consent of the author or photographer if, based on a provisional restriction in the Copyright Act such as Section 25 subsection 2, or the right to quote in Section 22, the use is secondary. In the Copyright Council's view, Section 25 subsection 2 only rarely permits works of art to be reproduced in the kind of music video mentioned in the request for comment. In accordance with Section 25 subsection 2 of the Copyright Act, permissible reproduction is, for example, when a work of fine art or a photograph is displayed in a music video, with secondary significance, behind the performers.
In connection with including of a work of fine art in a music video based on the right to quote in Section 22 of the Copyright Act, the Copyright Council noted that in the committee report 1991:33, references had been made to a more wider possibility to exercise the right to quote in the context of creating and quoting works of fine art, than the original preparatory materials for the Copyright Act refer to. The Council also noted, that in assessing the permissibility and the scope of the right to quote, one must first examine whether the object being quoted is a protected work. If the item does not meet the prerequisites of originality, or if the work's period of protection has ended, there are no restrictions based on Section 22 of the copyright Act, on its use.
A compilation work means a so-called derivative work. A compilation work has been created by combining already existing works or parts of works. We speak about compilation works once the works included in the compilation meet the prerequisite level of originality. For a compilation work to be granted copyright, the compilation is required to have compiled the works in a creative and original way. A wholly mechanical compilation does not meet the requirements of independence and originality. The person who has created the compilation work owns the copyright to it. The copyright of the author of the compilation does not limit the copyrights of the included works' authors. Consent of the original works' authors is required to use them in a compilation work.
Pastiche, cartoon and caricature
Pastiche (fr. pastiche, it. pasticcio) in fine art, means a work, which deliberately imitates another work in substance or style. Pastiche may be committed, taunting or humorous. A cartoon or caricature (it. caricare = to load) is an exaggerated image, which deliberately draws attention to a characteristic, or action, of either a real or imaginative person. Cartoons and caricatures make use of satire, critique and humour, which is expressed visually. Caricatures and cartoons may be political or non-political.
With pastiche, the viewer usually recognises the original work being used as a starting point. Pastiche creates something new i.e. is original and is protected under the Copyright Act as a work of art, provided that it meets the prerequisites of originality and therefore is considered a work. Sometimes it may be difficult to draw a line and it is unclear whether the pastiche violates the moral rights of the original work used as its basis. Pastiches have traditionally been made in connection with fine art education, however, artists also create pastiches. Pastiche seeks to imitate one or more well-known works or genres. Pastiche differs from parody in that pastiche does not intend to mock its object of imitation
As a rule, pastiches, cartoons and caricatures are independent, freely adapted works that have been created by freely adapting previous works. In this case, the author of a new work, pastiche, cartoon or caricature, does not require the consent of the original work's right holder (Section 4 of the Copyright Act). There is, however, no exception as such in the Copyright Act concerning parodies, cartoons and caricatures. The EU Copyright Directive refers to the use of a work in caricatures and pastiches as possible and permissible, provisional exceptions.
Cartoon, a joint or collective work
A cartoon receives copyright protection when it is the result of independent and original intellectual creative work. Many people may participate in the creation of a cartoon, e.g. the artist and scriptwriter may be separate people. A work is created from the creative, independent and original input of these people, or authors, which in itself is a copyrighted work and the object of copyright protection. The authors of a copyright protected work may receive both common rights for the created work, as well as separable rights for their individual contributions.
Joint works are defined in Section 6 of the Copyright Act. In a joint work, the authors' contributions do not form independent, detachable works. The copyright for a work created thus will be granted to the authors jointly. The authors of a joint work may only decide on the transfer and exploitation of the work's copyrights jointly. However, the authors have a right to present individual claims for copyright infringement.
Separate from joint works are collective works, which are a works created by combining the works of more than one author, with each author's contribution forming an independent work. In a collective work, the author's contribution is detachable. In the Supreme Court decision KKO 1956 II 76 (Mustalaisparoni), the court considered the operetta's music and text to form separable and independent works of art. The writer of the text was not shown to have contributed with a creative input to the creation of the musical composition in a way that would have made him an author of the musical composition together with the composer. The right holder's claim for damages for the performance of the operetta was accepted on part of the text, but rejected on part of the music, whose copyright protection had expired. The authors of the collective work decided independently on the transfer and use of the copyright for their contributions. It is the most practical to gather all the rights into the hands of one party, such as the producer, theatre etc.
A cartoon, the creation of which has required the participation of more than one author can be regarded, in principle, as a collective work rather than a joint work. Cartoon syndicates i.e. comic agencies sell and distribute cartoons to newspapers. Syndicate agreements concern, for example, whether the series is distributed under exclusive rights, what the payment terms and potential book and merchandising rights are.
The Copyright Act includes a chapter on publishing agreements. Its special provisions on publishing agreements are applied, unless otherwise agreed in publishing agreements.
Under the Copyright Act, a copyright is born at the moment the work is created. Copyright protection is granted only to a work that meets the prerequisites of originality and demonstrates the result of its author's independent and original intellectual work. The protection of a work of fine art begins as soon as the work is sufficiently independent and original for the originality requirements. Originality is interpreted as a result, the like of which no-one else might have probably ended up with, using the same methods. Also a draft of a work and an incomplete or unsigned work, may be entitled to copyright protection, if it meets prerequisites of originality i.e. is independent and original.
Any registration, notification or marking indicating the work's protection, is not required. Also 'desk drawer works' enjoy copyright protection, publication of the work is not a prerequisite for protection. The often used, universal mark © with the first publication year and name of the artist, e.g. © 2010 Archie Artist, is also not a prerequisite for the birth of a copyright. The mark indicates the right holder of the work. The author can always use the © mark.
A copyright can be created to a natural person only. It can not be created to a legal person such as a company or society. Copyright may however be passed on, in part or wholly, by agreement e.g. to a company or society. Societies and companies may receive copyright protection only on the basis of rights transferred by the original authors.
An author is considered only to be that person, based on whose creative contribution the work was created. If the authors have created the work together, and their contributions do not form independent works, joint copyright protection is created for the authors. Technical assistants are not considered authors; for example, the people in charge of casting a bronze sculpture according to the author's instructions, are not themselves authors. The initiator of the work is also not considered an author, if the concrete shape and form is the result of some other person's creative contribution.
In accordance with the Copyright Act, the person who has created an artistic work, owns the exclusive right to their work. The copyright protects the author's economic and moral rights.
The author's right to attribution and integrity
The Copyright Act protects not only the author's economic rights, but also their moral rights. The author has, firstly, the first right to be mentioned in connection with the work as its author, or the right to attribution. Second, adapting the work in a way that offends the artistic quality of the artist, or exhibiting the work in such a context that it may offend the author, is prohibited based on the right to integrity.
Moral rights have been defined in the copyright agreement of the International Bern Convention thus: regardless of their economic rights, and also having transferred them, the author has a right to demand recognition of their authorship and object to the distortion, abbreviation and other adaptation of their work, as well as all other infringing measures targeting the work, which violate the author's honour or reputation.
The infringing context may involve, for example, the political, religious, racist or social use of the work. Judicial practice has found as offensive use, among other things, the use of a teetotaller photographer's photograph on a wine label, a pacifist artist's work in a violent game and the use of a work by an artist avoiding commercial use, in advertising. Adaptations that offend the artistic value of an author may also be relevant when the colours of a work are changed or the work is cut or cropped.
The author's exclusive right includes the right to control all adaptation and alteration of the work. Adapting a work does therefore not remove the original author's rights and, in principle, consent for creating an adaptation is always required from the author. The creation of a new and independent work, as well as pastiche and cartoons, have been discussed above.
The right of access
The author of a work of fine art always has the right of access to their work. The author and right holder of a work of fine art has the right to see and photograph a work, if it is necessary for the realisation of the author's economic rights, e.g. for the creation of a catalogue or post cards or for other purposes relating to the author's artistic work. The right of access must be realised in such a manner that does not cause unreasonable harm to the owner or right holder of the work.
The author has the exclusive right to control their work by reproducing it and making it available to the public. The explicit consent of the author is usually required for the use of a work. The economic aspect of copyright includes the author's exclusive right to control all such use of their work as may have economic significance. The author may transfer their economic rights wholly or in part. The author has the right to control the terms, under which they transfer, wholly or in part, their rights and with which their work may be exploited. The author's economic rights govern the use of the work as an object of exchange or other dissemination to the public.
The author or a work of fine art owns the right to control the reproduction of their work. Reproduction is seen as all reproduction of the work, such as printing an image on a print product. Also, photographing a work of fine art is reproduction, as intended in the Copyright Act.
In its opinion 2002:6, the Copyright Council considered, among other things, that: an artist's sculptures, which had been placed in the National Opera foyer impermanently, enjoyed copyright protection in such a manner, that the consent of the sculptor should have been sought, in order to photograph the sculptures for the mens' and ladies' wear catalogue of company A Ltd.
Since the author had, in accordance with Section 2 of the Copyright Act, the right to reproduce their work on any form, any adaptation of the work and the inclusion of adapted work in another product, such as another work of fine art, would fall under the exclusive right of the author.
The Copyright Act also protects the author's right to control publication of their work. A part of the author's economic rights entails that the author, or they to whom the author has transferred their rights, controls the public exhibition and presentation or the work. Exhibition is taken to mean display of the work in a traditional and physical form, such as display in an art exhibition, as well as exhibition that occurs with the aid of a technical device. Prior to the publication of the work, the author's right to their work is unlimited.
The distribution right protects the dissemination for sale, rental, loan or distribution that happens through any other manner. The sale and rental of works of fine art and photography are use, which is protected under the Copyright Act. When a copy of the work has been sold or otherwise permanently transferred, with the consent of the author, for the first time, the work may be redistributed (Section 19 of the Copyright Act). A professional or public resale of the work, however, entitles the author to a resale royalty.
The author has an inalienable right to a royalty, for any professional and public resale of fine art, which is 5% of the VAT free selling price of the work, when its price is between 255 and 50,000 Euros. When the selling price goes past 50,000 Euros, the percentage of the royalty decreases.
The resale royalty covers both works of fine art as well as photography. The right to a resale royalty applies to limited number products of handicrafts and industrial art. Handicraft and industrial art limited editions, limited edition sets with a provably limited number of production, as well as unique works, are entitled to a resale royalty. The resale of a building does not entitle to a resale royalty. Professional auctioneers and art dealers are responsible for performing the payment, and fulfilling their payment duty, to the organisation collecting the payment, Kuvasto ry. Kuvasto ry transfers the payments to the authors and authors' right holders.
The starting point for copyright is that the control over use of a copyright protected work is always with the author or that party, to whom the author has transferred their right. The Copyright Act has, however, for some social and cultural situations, limited copyright, in favour of the freedom of speech and communication. The restrictions in the Copyright Act have been defined in Chapter 2 of the Copyright Act.
Public exhibition of a work
In accordance with the Copyright Act, when a work of art is sold or otherwise permanently transferred, or when a work of art is made public, the work may be exhibited publicly. In practice, this means that the author's right to control the public exhibition of a work of art applies only to copies in their possession. An art museum or private collector may, having acquired a painting or sculpture for their collections, place the work in public display on their own premises or elsewhere without separately having to ask for permission or compensate the author.
KKO 1980 II 46. The cooperative X had prepared a blow-up of a photograph found in a newspaper article and placed it on public display. This procedure was not considered public exhibition, which would, in the case mentioned in the lawsuit, have been permissible, but the reproduction of a copyright protected work. Because of the lawsuit brought on X by author A, X had to pay A reasonable compensation for unauthorised use as well as compensation for other losses.
Using a work in a critical and scientific presentation
Images of published works of art relating to the text may be included in a critical or scientific presentation. However, the presentation's text must be the main subject matter in the type of critical or scientific article intended by this section of the Act. Images must be related to the text; they must illustrate and clarify the text. The section of the Act uses an art exhibition critique as an example of a critical presentation. The Copyright Council has considered as a critical presentation a presentation, where the writer attaches their own evaluations to the interpretations of the works of art, and where the article's point of view has been critical. Scientific presentations are considered presentations, which fulfil the general requirements set for the scientific treatment of subject matter.
Use of a work in connection with current affairs
When covering current affairs for a newspaper of magazine (Section 25 of the Copyright Act), images of a work of art may be connected with a text, provided that the work has not been created for reproduction in the newspaper of magazine. The current affair mentioned in the provision does not have to be within the field of art. The provisional restriction applies to both traditional journals printed on paper, as well as their online publications. The provision requires, in any case, a connection between the image and text. The basis for the provisional restriction is the need and duty of the press to report on current affairs.
A work of art can also be included in another photograph, film or television programme, if its reproduction in the photograph, film or television programme is of secondary significance. This provisional restriction applies only to such copies of the work of art, which have been sold of permanently transferred with the consent of the author. For example, in the aforementioned case regarding a sculptor, the sculptures had not been sold or transferred permanently, but were the possessions of the artist and had been placed in a temporary exhibition in the foyer of the National Opera. Permitted secondary use under the provisional restriction, as discussed now, includes the display of the art collection of a person being interviewed for a television programme, as part of the set.
Photography or a work of art in a public space
Photography of a work of art is permitted when a work has been permanently placed in a public place or in its immediate vicinity. However, if the work of art is the main subject of the shot, it may not be used for commercial purposes. It is permitted, however, to use the photograph when it relates to a text in a newspaper or magazine.
Exhibiting a work in an educational context
A work of art that has been published, may be exhibited publicly in an educational context (Section 21 of the Copyright Act). This provision does not apply to dramatic or film works, the exhibition of which always requires the consent of the author. A work in the National Audiovisual Archive (KAVA) collection, with exception of a film work recorded by a foreign producer, may be used for research and college-level film education. Teaching activity, as intended under the Act, is includes only such teaching activity that does not happen for commercial purposes.
Photographing a building
A building's interior and exterior may freely be photographed. This applies to two-dimensional imaging, for example, by photography or drawing. Three-dimensional reproduction requires the consent of the architect.
A catalogue or communication relating to an exhibition and sale
A work of art, which belongs to a collection or is displayed in public, or is offered for sale, may be photographed for a catalogue or other communication relating to an exhibition or sale The collection or exhibition catalogue may be created without the permission of, or compensation to, the artist, in the case of an analogue method of reproduction i.e. a catalogue printed traditionally on paper. The consent of the right holder is however required for a digital catalogue Use of an image in an exhibition or sales communication requires that the work is actually offered for sale or exhibited. Exhibition catalogues are taken to mean works that help to guide the people who come to see the works. A work can also not be used in promoting the art dealer or other company after a sale has taken place.
Photocopying a work of art
Photocopying a work of art is reproduction. Photocopying licenses are granted, in accordance with the special provisions in the Copyright Act, by the copyright organisation representing all authors, Kopiosto ry.
Anyone can produce a few copies of a published work for private use, for example, by photographing it. However, the reproducing a work of fine art may not be given to an external party may not be used to copy a work of art protected by cpyright. A person may personally copy a painting for a wall in their home, but may not employ an art foundry to make a bronze cast from a plaster sculpture. This applies also if he owns the plaster sculptor, material ownership does not give copyright.
You may donate a copy that you have made yourself to a friend or relative, but a work created in such a way may not be sold on. It is noteworthy, that only the author may assign a person to mark an artwork with the author's name or nom de plume. A copy of the work may not be marked with the author's name of nom de plume in such a way that the reproduction could be mistaken with the original.
Freedom of Expression
Article 11 (1) of the Charter of Fundamental Rights of the European Union which stipulates as follows “(e)veryone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.” Article 11 (2) provides that “(t)he freedom and pluralism of the media shall be respected.” Freedom of expression can justify the use of a picture in political art if the picture is needed to make a statement about important social and political questions. Freedom of expression is also protected by the national constitution as discussed in the section Freedom of Science.
Transfer of Copyright
A copyright may be transferred by agreement to a natural person, i.e. a human being, or a legal person such as a company or other society. Economic rights may be transferred in part or wholly but moral rights are, in principle, inalienable. Moral rights can only be transferred in a way that is limited in quality and extent, for example, in a way that leaves the author's name unmentioned in a limited context. The extent of copyright transfer is defined by the content of the agreement. Insofar as copyrights have not been transferred by agreement, they remain with the author.
In accordance with the Copyright Act, they to whom the copyright has been transferred, may not adapt the work or transfer their rights, unless otherwise explicitly agreed. If it is desired, that the work may be adapted or that the right is transferable to a third party, this is to be explicitly agreed upon.
Unless otherwise agreed, copyrights remain with the artist after the transfer of a work, or its copy. In accordance with the explicit provision of the Copyright Act, the transfer or a copy does not entail the transfer of copyright. A person who has acquired a copy of a work may thus not, for example, reproduce post cards or enlargements of the work, or upload a photograph of it 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.
The author of a portrait made to commission may however not exercise their right without the consent of the person who commissioned it, or after their death, that of their widow or heirs. Thus, the author requires the consent of the commissioner, for example, for the manufacturing reproductions of the portrait.
Period of protection
The Copyright Act only protects works for a specific time. After this period of protection, permission is no longer required from the author. Copyright is valid during the lifetime of the author and 70 years after the year of the author's death. Use of works whose period of protection has expired is free, with the exception of the Ministry of Education prohibition of any use that is offensive to cultural interests.
Visual copyright organizations
Kopiosto ry represents several Finnish right holders and grants the permission, for example, for photocopying copyrighted material. Photocopying royalties are used for authors' common purposes.
The Copyright Act protects the photographer's right to their own photographs. There are two kinds of provision concerning photographs in the Copyright Act. An image, which was created by photographing, may receive copyright protection either as a photographic work or a related right as a photograph i.e. an ordinary photograph. Photographs that meet the prerequisites of independence and originality, receive copyright protection as works. All other photographs receive a more limited protection as ordinary photographs, in accordance with the related rights defined in the Copyright Act.
Protection is thus granted to all photographs; ones taken in a studio, those taken amongst the family, such as tourist photographs, as well as reportage photographs. A requirement for the protection of an ordinary photograph is, simply, that it has been taken. Ordinary photographs receive almost as extensive protection as photographs that were taken as a work. The main difference concerns the shorter period of protection of an ordinary photograph. The following applies both to a photographic work as well as a photograph, unless otherwise specified.
Photographic works and photographs are images that were created through photography or techniques comparable to photography. A photograph is taken to mean an image that is created by exposing a sensitive material (such as film, or a sensor) to light. The light may be visible or invisible. An image that is created using a technique comparable to photography includes imaging that happens by the use of a thermographic camera. The storage medium may be anything, e.g. magnetic tape, memory card, image stored in the hard drive of a computer. It does not matter whether the image can be seen without technical aids. Photographs taken with a digital camera and a mobile phone are photographs in the sense intended by the Copyright Act. Individual frames from a film are protected as photographs intended by Section 49, or if they meet the originality requirements, photographic works as intended by Section 1 of the Copyright Act
A photographic work differs from a photograph in that a photographic work is the independent and original result of its author's intellectual creative work. A photographic work should reflect its author's creative decisions and be such that no one else could have ended up with the same result, if they approached a similar photography assignment. It is not always easy to draw a clear line between a photographic work and a photograph that is protected by related rights, and this will have to be resolved based on individual cases.
There are few cases regarding the originality requirements of photographs. The Turku Court of Appeal ruling no. 2154 of 1997 assessed a photograph on the label of a wine bottle, which depicted rapids. The photography did not receive protection as a photographic work, but as an ordinary photograph.
The copyright of a photographic work, or the related right to a photograph, does not protect an idea, theme or plot. Concepts, principles, technical solutions and any information that is presented, are also not protected, and these are therefore exploitable by anyone. Copyright protects a photographic work's form of appearance and expression, to which the author contributed by their intellectual creative work.
Copyright is created automatically, in accordance with the Act, as soon as the work is created. The birth of the protection is the moment of the film's exposure, or for a digital camera, the moment of a sensor's exposure being recorded onto a file. The period of protection for a photograph is shorter than that of a photographic work. The period of protection for a photographic work is 70 years from the end of the year the author died and the period for a photograph is 50 years from the end of the year the photograph was taken. The period of protection for a joint work is calculated from the year of the death of the last surviving author.
In its opinion TN 2003:6, The Copyright Council found that the photographer NN had, as the only photographer, taken a decent picture of Paavo Nurmi while lighting the Olympic flame. According to the Council's view, this picture was, although valuable in terms of sports and cultural history, only an ordinary photograph, which would receive related rights as a photograph. As the period of protection for the photograph in question had expired, it could be used in an advertisement for the cartoon magazine Aku Ankka (Donald Duck).
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.
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 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.
The transfer of rights
The copyright to a photograph may be transferred by agreement. The author may transfer their economic rights fully or partially. The author of a photograph may transfer their moral rights only in part. The author of an ordinary photograph may transfer all of their moral rights.
As the extent of the copyright transfer is defined by the content of the agreement, it is always advisable to make the agreement in writing. Insofar as they have not been transferred, the rights remain with the photographer. An agreement may be used to agree, among other things, on what use the agreement entitles, how long the duration of the agreement is, whether reproduction or adaptation is possible, whether the agreement concerns an exclusive or non-exclusive right, what the size of the compensation is, and whether the name of the author is mentioned in connection with the work. These issues are discussed in closer detail in the section Entrepreneur in the creative industries.
In accordance with the Copyright Act, the person who has a copyright to a work, or a related right to a photograph, may not adapt the work or transfer the right to use it, unless otherwise agreed. The right to adapt and transfer must always be agreed upon explicitly, otherwise the principal starting point is that the rights in question have not been transferred.
Even when a photographic work has been created in employment, the copyright is transferred to the photographer. It is however possible to agree, in an employment, collective labour agreement or other agreement, that the copyrights related to work assignments are transferred to the employer. Regarding employment relationships, however, it is noteworthy to note that the employer receives the right of use to the work or photograph taken by the employee in a work assignment, to the extent as the employer's normal activity requires.
Copyright has been restricted in the Copyright Act for practical and societal reasons. The most significant restrictions regard reproduction for one's own use and the so-called right to quote.
A natural person may photograph a published photographic work or photograph, as long as this happens for private use, but a legal person may not. Private use is no longer the case if, for example, post cards are manufactured from the published photograph, or if it is published on an internet blog. This always requires permission from the author of the work. The author's permission is also required, when it is decided to produce a blow-up of any photographic work or photograph for a public space.
The right to quote means that quotations of a published work may be used in accordance with good practice and to the extent required by the specific purpose. The quotation must be accompanied by the name and author of the work being quoted, in accordance with good practice. The used quotation must have an appropriate connection to the work the quotation is being used in. Also a photograph can be quoted, if such a context exists.
Images of a published photographic works or photographs relating to a text may be included in a critical or scientific presentation and newspaper or journal, when reporting current affairs. A thesis, for example, is such a scientific presentation.
A photographic work and photograph, which belong to a collection or are displayed in public, or are offered for sale, may be photographed for a catalogue or other communication relating to an exhibition or sale.
The photographic work or photograph, which has been published, may be exhibited publicly in an educational context. It is therefore permissible in connection with college teaching, for example, to illustrate the subject being taught by presenting an image of a published photographic work or photograph. This provision does, however, not permit reproduction.
The commissioner of a portrait created by photographic means has, although the photographer has reserved themselves the right to the work, a right to grant permission to use the portrait in a newspaper, journal or biographical writing, unless the photographer has explicitly reserved the right to prohibit doing so (Section 40 of the Copyright Act). In such cases, where the photographer has reserved themselves the right to control the use of a portrait in a newspaper, journal or biographical writing about the commissioner of the portrait, the photographer's rights are however restricted by the provisions in Section 27 of the Copyright Act, according to which the author may not use their right to the commissioned portrait, without the consent of the client, or after their death, their widow or heirs. This restriction is intended to ensure the client's right to prohibit the use of their portrait when desired.
The use of a person, trademark and other property in a photograph or film are subject to the ICC Marketing Codes. This issue is discussed in the section Entrepreneur in the creative industries.
"What is particular about the copyright protection of photography in comparison with other works of fine art?"
In accordance with the legal protection of the Copyright Act of photographs extends wider than for other works of art. A photograph may receive copyright protection as a photographic work as intended in Section 1 of the Copyright Act , if it reflects the original and personal contribution of the person who took the photograph. However, regardless of whether the photograph meets the prerequisites of originality in Section 1 of the Copyright Act, it will receive related rights protection in accordance with Section 49 of the Copyright Act.
"What does the resale royalty of fine art mean and what kinds of work does this apply to?"
The resale royalty means the right of the author of a work of fine art to a resale compensation for the later resale of their work. The author of a work in entitled to a share of the selling price for a work already transferred, once it changes hands again. The size of the compensation is 5% of the VAT-free sales price. The compensation is collected by Kuvasto. The resale royalty applies to all unique products of handicrafts and industrial art.
"A perfect drawn reproduction is made of a photograph taken by you, after which the drawing is exhibited publicly with the intent of a sale. Does the reproduction infringe your copyright?"
The photographer's exclusive rights include controlling the right to reproduce the photograph and make it public. Reproduction of the photograph is taken to mean the duplication of the photograph using any technique. Thus a reproduction by the means of drawing may also violate copyright.
"A photograph taken by you is published in connection with an interview in the magazine Me Naiset. A week later you notice that the photograph you took is published in connection with another piece in the magazine Kotiliesi. Has Kotiliesi infringed your copyright?"
This depends on the terms under which you transferred the right of use for your photographs to Me Naiset and also whether you are employed by the magazine in question, or are a freelance photographer. If you work for Me Naiset, the matter will be resolved in accordance with the terms of your employment agreement. If, on the other hand, you are a freelance photographer and have sold the photographs under single publishing rights, permission will be required for each separate reprint.
"A newspaper publishes your comic strip, but due to its crude speech bubbles criticising contemporary politics, the newspaper alters it to a more neutral direction. Is this permitted under the Copyright Act?"
In principle it is not. In accordance with Section 2 of the Copyright Act, the author of the work controls any alterations to the work. Thus, in principle, the newspaper requires permission from the author of the comic strips in order to change the comic strip. However, the matter will be resolved on the basis of what you have agreed upon with regards to the publication of the comic. If you have given the newspaper the right to make the aforementioned kinds of adaptations, then these changes do not violate your copyrights.