Understanding Photography & Copyright

June 17, 2016

Understanding Photography and Copyright
 

  • Generally, copyright in photos lasts for the life of the creator plus 70 years.

  • Copyright has expired in photos taken prior to 1 January 1955.

  • Ownership of a photo varies depending on the circumstances under which it was taken.

  • You will not own copyright just because you own the camera.

  • Photographers also have moral rights in relation to their works.

So who owns the copyright?

 

For photos, unless there is a written agreement between the client and the photographer, the photographer is the first owner of copyright, however there are exceptions to these rights. For commissioned photos where a ‘client’ pays a photographer to take a photo:

  • Photos taken on or after July 1998, the general rules of ownership depends on the purpose for which the photos were taken, if the images are taken for ‘domestic or private purpose ‘ eg. family portraits, the first owner of copyright is the client, unless the photographer and client agree otherwise.

  • If they are taken for other reasons such as ‘commercial shots’ the photographer is the first owner of copyright unless there is a formal agreement otherwise.

Scenario (refereeing to domestic or private purpose):

Kate goes and books in her family photography session with her photographer and there is no written or verbal agreement between the two regarding the ownership of the photographs. You the ‘client’ owns copyright to those images. If your photographer wants to use those images on their facebook, website, or any other form of advertising etc they must attain permission from you as the copyright holder. Please note this does not apply to ‘commercial photography’.

What rights do you have as holder to copyright?

As a copyright holder to an image you have rights to:

  • reproduce – making prints, photocopying, and digitizing the image

  • publish the photo

  • communicate the photo to the public for example, by putting the photos onto a website, or emailing digital files of them.

However Photographers have ‘MORAL RIGHTS’

 

Creators have moral right, which are separate from copyright Moral rights impose certain obligations on people who use a copyright work. As a photographer Lilaco Designs have the right to

  • Be attributed as the creator of the photos

  • Take legal action if our work is falsely attributed or distorted in any way.

Who owns the negatives or digital files of photos I took for a client?

 

Ownership of copyright in the photos is separate from the ownership of physical items, such as the prints, negatives or digital files. Your agreement between you and your photographer should outline this.

“If the client owns copyright in the photos, he or she may make copies from prints in his or her possession. A photographer may own negatives but this does not entitle him or her to make further prints without the copyright owner’s consent. If a photographer owns digital files and the client owns copyright, then you should get an agreement about what you can do with the digital files, as most uses will require the copyright owner’s permission”.

A photographer was commissioned to take photos and hasn’t been paid. Who owns copyright to the photos

This is where the ‘copyright’ law gets a little more complex. The ownership of a physical negative, or digital file isn’t determined by copyright law, but is in fact ‘general property law’. The owner of a digital file is likely to be the person who created it, ie your photographer! 

Lilaco Designs is in no way, shape or form detailing exact ruling regarding copyright laws, please use this as a guide only. If you need to know about how the law applies in a particular situation, please seek advice from a lawyer. Further information re: copyright in Australia can be sought from http://www.copyright.org.au

 

Please also note: There is a special provision in the Copyright Act for photographs commissioned for a private or domestic purpose, where there is no agreement between the photographer and the client about who owns copyright (section 35(5)).

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