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Sunday 24 March 2019
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Commentary

Carnival copyright concerns

TT Photographic Society

Part 2

A CRITICAL question has come to the fore over the past week: under TT copyright laws, what is the extent and limit of the reproduction rights which photographers have in relation to “works of mas” photographed during the course of Carnival, both at official events as well as in public places anywhere in TT?

Does a photographer, for example, have the right to use an image of a moko jumbie taken on Charlotte Street on Carnival Tuesday on his or her Facebook page and other social media sites, or website, or as part of editorial content in a magazine, without paying royalties in advance to the TT Copyright Organisation (TTCO), which is claiming extensive rights as a licensing agency for “works of mas” by broadly deeming editorial photography as being included in what it defines as commercial use?

It Part 1 of this article we, the TT Photographic Society, expressed serious concern regarding the TTCO’s categorisation of “commercial use” to include use of photography for editorial purposes.

This categorisation is flawed and completely at odds with locally and globally established definitions of editorial content, ie, for informational purposes, for example use of a photo in an article on fancy sailors as a unique characteristic of our Carnival. This is very different from commercial content, ie, advertising, in which a photo of a sailor is used to sell a brand of baby powder.

The usage value of each of these examples is very different. A photographer might get paid a couple hundred dollars for use of the fancy sailor photograph in a magazine article, and no permission is required from the person in the photo.

However, to use that same photo in an ad, the photographer would have to get the signed permission of the fancy sailor, who would derive the benefit of being compensated for the use of the image.

The society therefore questions the very basis on which the TTCO is assessing “blanket” licences. Its assessment criteria demonstrate a lack of knowledge of different types of photography use within the media industry. Implementing punitive measures for editorial use is unjust and a real disincentive to legitimate photography of Carnival.

Furthermore, what checks and balances are there to ensure proper accountability by the TTCO in respect of the collection of the fees it is assessing for “works of mas,” and what assurances do photographers have that disbursement will be done in a fair manner?

This also raises the question of how the TTCO and the TT Carnival Bands Association are going to keep track of all photography used in publications and advertising locally and internationally to distinguish between usage that falls under paid licences and that which does not.

The act of taking a photograph of a “work of mas” is not in and of itself an abuse of the intellectual property rights of the masquerader, or of the rights of the designer and producer of that “work of mas.” In the case of traditional mas, the person performing the mas has usually also designed and made the portrayal.

It is also important to note that not all Carnival costumes meet the definition of what can by copyrighted as a “work of mas.”

While “works of mas” are afforded protection under the copyright law, so too are photographers afforded protection. We are questioning the TTCO’s interpretation of its rights in relation to those of photographers, and we are of the opinion that the only just way forward is for the NCC to suspend the new licence requirements for photographers that were put in place this year without proper consultation.

All the stakeholders need to sit down after Carnival to arrive at a fair system of accreditation which can be transparently implemented, which includes devising robust methods for how licence fees can be properly and transparently assessed and disbursed.

The society sees itself as part of the solution to the current issues by promoting professional approaches to everything that affects photography. That includes standards-setting, understanding and respecting the rights of photographers, and respecting the intellectual property rights of those whom we photograph.

At the moment there are more questions than answers. Wading around in the grey pools of uncertainty, misinformation and misguided claims that currently prevail is causing a considerable amount of fear and confusion among photographers and in the public at large.

There is now an urgent need for the Attorney General’s Intellectual Property Office to bring much greater clarity to the complex issues surrounding the rights of “works of mas,” the rights of photographers (and videographers), the rights of the TTCO, and, generally speaking, all the rights the public needs to be aware of with respect to our Copyright Act and Carnival.

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