UK Law and Practice Contributed by: Margherita Barbagallo, Sanskriti Mohta and Nilojana Nirmalan, Dragon Argent
the guardianship and protection of historic sites and structures. Heritage Protection Specific assets can be protected through designa - tion. For example, a gallery building can be “listed” under the Planning (Listed Buildings and Conservation Areas) Act 1990, and its historic contents (a collec - tion) may be protected as part of the listing if they are integral to the building’s character. In summary, a collection is protected either by virtue of being in public ownership or by being officially desig - nated as nationally important under schemes such as AIL or export controls, which are designed to secure its preservation for future generations. 8. Photography 8.1 When Are Photographs Protected as Art? Under English law, a photograph is protected as an artistic work irrespective of its artistic quality. The CPDA explicitly includes a “photograph” in its defini - tion of an artistic work. Therefore, the legal thresh - old for protection is not based on aesthetic merit or artistic intention; instead, copyright protection arises automatically upon the creation of the work, provided it is “original”. Under English law, the threshold for this originality is deliberately very low. While a simple photocopy of an existing image is unlikely to attract protection as it involves no skill or labour beyond a mechanical process, a photograph is treated different - ly. The act of taking a photograph inherently involves some element of human judgement. For a photograph to be an original work, it must not be a copy of another photograph and must originate from the author. This originality can be found in the mini - mal skill and labour involved in the creative choices made at the moment of capture, such as selecting the angle, framing the composition or adjusting the exposure. Consequently, even a snapshot of a famous building or a crowded street scene will benefit from its own distinct copyright protection. This principle has become increasingly significant in the digital age, where millions of such images are created and shared daily. As long as there is some judgement involved
in the photographic process, the resulting image is protected by copyright as an artistic work. 8.2 Legal Protection for Different Types of Photographs Photographs that may not meet the threshold for copyright protection (or even those that do) are also protected by other laws, primarily concerning privacy and moral rights. Right to Privacy (Section 85, CDPA) This provides a specific protection for photographs. If a person commissions a photograph for private and domestic purposes (eg, a wedding or family portrait), they have the right not to have copies of it issued to the public, exhibited or shown in public, or communi - cated to the public. This right exists independently of copyright, meaning that even if the copyright is owned by the photographer the commissioner can prevent its public dissemination. Moral Rights The photographer also has moral rights under the CDPA (see 2.1 Artists’ Rights Over Their Art ). These rights have become significantly more important (yet more difficult to enforce) with the rise of digital com - munication. In an online environment, images are constantly copied, altered, stripped of attribution and re-shared. The ease with which a photograph can be used, cropped or filtered means that derogatory treatment and lack of credit are now commonplace. This raises questions about the future of moral rights themselves: without a practical means of monitor - ing and enforcing these rights across the vast, global digital landscape, legal protection may risk becoming theoretical. Data Protection Law Photographs that feature identifiable living individuals constitute their “personal data” under the UK General Data Protection Regulation and the Data Protection Act 2018. This imposes obligations on the person or organisation taking, storing or publishing the photo - graph, particularly in a professional or public context. Criminal Law In some circumstances, criminal law applies. For example, the creation of “indecent images of children”
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