In the second part of our interview with Sumaiya De`Mar, the founder and lawyer behind SA Fashion Law, we delve into photography in the times of social media, protecting models and service solutions for our growing fashion industry.
We live in a time when there’s a lot of reposting on social media and half the time the origins of pictures are unknown, what preventative advice do you give to photographers in this case?
• When posting photographs on social media there are rules in the fine print of most social media platforms that basically states that you are the owner of the pictures that you post and they will not be held liable for any copyright issues as a result. So by posting these photographs you are providing them with a licence to your photos so that they can be shared and distributed, as nothing on social media is ever private. This does not mean that people can claim a photographer’s photos as their own. If there is an infringement on any social media platform, there are procedures for reporting the infringement and having the infringing photographs removed.
• There are certain exemptions to the rights of copyright, which is known as fair dealing. For example, copying parts of somebody’s work for private research, quotations, study, critique or reporting on current events does not infringe their rights. The rule here is to give acknowledgement and recognition to the owner, where available.
• Street style photos also seem to be gaining popularity throughout social media, but who do these belong to? The photographer of course, unless the photographs have been commissioned by a company, in which case it will belong to that company.
• In order for photographers to make sure that their work is recognised, especially when shared, I would recommend placing a copyright notice on their work (even as a watermark), which needs to state: © + year of creation + name + contact details “All rights reserved”. This ensures that when people are sharing the photographer’s work they get credited appropriately.
What are the common cases and protection available for models?
• Modelling, like any other industry, is subject to the employment laws of South Africa. This affords them protection. However, they may be vulnerable in terms of the usage of their images.
• The ownership of copyright generally belongs to the creator, however there are two exceptions, which are as follows:
- Work done in the course and scope of your employment (if there is a contract of employment in place, the work belongs to your employer)
- If the work was commissioned. For example, if a magazine hires a model to do an editorial photoshoot – the copyright belongs to the magazine, provided that they have paid for the images in money or its equivalent (such as a trade exchange).
• Therefore it is of utmost importance that models should read their contracts and understand them before signing anything.
How is the local industry looking like and what solutions are there?
• The fashion industry in SA has a slightly less formal approach to the law and I would like to raise awareness by bringing some formality to business transactions and affording access to legal protection.
• I do this by offering the fashion industry a service that is unique, tailored to the challenges that businesses face. At each step of the life of a garment, from conception to brand protection, I assist designers in taking their business to the next level with personal attention to their objectives. This includes consulting with designers, drafting legal contracts and agreements, registering businesses, trademarks, designs, etc.
• My aim is to highlight the importance of safeguarding the intellectual property of an article of clothing or a fashion accessory throughout its life cycle, and to equip businesses with the knowledge and information required.