Australian Copyright Considerations for Photographers
Copyright law in Australia has some different features from US, UK and Canadian copyright law.
Copyright in Australia is covered by the Copyright Act 1968 (Cth).
Firstly, there is no requirement for registration, nor does a copyright notice needed to be attached to an image.
While the general rule in Australia is that the first owner of copyright is the creator of a work, with an exception to this being where a work is created by an employee of a business as part of that person’s job, the default position on who owns copyright in images taken by a photographer in Australia initially depends on whether the photographs are considered to have been commissioned for a commercial or a private purpose.
Under Australian law, Copyright owners have the exclusive right to: reproduce the work; make the work public for the first time; and communicate the work to the public.
Copyright Owners also have the rights to license the use of their works, in return for a “valuable consideration”.
Whilst this most often refers to a financial payment, it can also refer to a bartering arrangement where goods and services are exchanged. Unless an exception detailed in the Copyright Act is applicable, other parties (people or companies) will require permission (i.e. a license) to use copyright material in ways reserved as the exclusive rights of the Copyright owner.
One key distinctive of Australian copyright law is the reservation of moral rights vesting in the creator of a work (the photographer). Moral rights do not depend on whether or not they retain ownership of copyright.
Primarily, moral rights give the creator/photographer the rights to:
- Be attributed as the creator of their work
- Take legal action if their work is falsely attributed, and;
- Take legal action if their work is altered in such a way that is prejudicial to their reputation.
Moral rights cannot be assigned to another entity in the same way as copyright, however a creator/photographer may waive their moral rights.
So who owns the copyright by default?
Generally, if photos have been commissioned for a private purpose such as a wedding, then the client will retain the copyright in the photos as a default.
The photographer will also be able to restrain (or prevent) the use of images for a purpose other than which they photographer was contracted.
For example, a bride and groom cannot sell the images for commercial publication without the consent of the photographer.
The following summarizes when the client, rather than the photographer, was the first owner of copyright in a photograph in the absence of agreement about copyright ownership.
|CREATED||CLIENT AS FIRST OWNER||PHOTOGRAPHER’S RIGHT TO RESTRAIN OTHER USE|
|Before 1 July 1998||Photograph commissioned for any purpose
Where the client is the government
|If photograph taken after 1 May 1969; and client indicated purpose of photograph; then photographer can restrain use for any other purpose|
|Since 1 July 1998||
Where photographs have been commissioned for private or domestic purpose (includes: weddings, family portraits, newborn or children’s portrait)
Commissioned portrait (for any purpose)
Where the client is the government
|If client indicated purpose of photograph, photographer can restrain use for any other purpose.|
Other the other hand, if a photographer is commissioned to do work for another party on a commercial basis, the copyright in the photographs remains with the photographer.
Reproduction of any photograph will require the consent of the photographer. A copyright notice or watermark is a good way to indicate you are the original copyright owner but this is not required to trigger copyright protection. Remember, to operate as a freelancer in Australia, you must have an Australian Business Number (ABN).
Be aware that if photos are taken in the course of employment, the employer will own the copyright unless there is an agreement otherwise.
A contract should limit what a commissioner can use the photo for, and the rights of the photographer as the original copyright owner of the photographs. It is important to have a lawyer licensed in Australia review any contract before signing.
Using commissioned photos beyond the purposes originally agreed would constitute a breach of the photographer’s copyright. A photographer making works for, or who allows a government (Commonwealth, State or Territory) to be the first publisher should note that the Australian government owns copyright in the absence of an agreement to the contrary.
For photographs taken before 1 July 1998, the client, rather than the photographer, was the first owner of copyright in a photograph in the absence of agreement about copyright ownership.
If a photograph was taken since 1 May 1969, and the client indicated purpose of photograph, the photographer can restrain use for any other purpose.
For photographs taken after 1 July 1998, if the client has indicated purpose of photograph, the photographer can restrain use for any other purpose. If there is no agreement otherwise, section 35(5) Copyright Act 1968 (Cth), applies to photographs commissioned for a private or domestic purpose, where there is no agreement between the photographer and the client about who owns copyright.
It states that if a photographer makes an agreement with another person for the taking of a photograph for a private or domestic purpose, in exchange for “valuable consideration,” and the work is made according to the terms of the agreement, then the photographer is the owner of any copyright remaining in the work.
Let’s talk about what needs to be in Australian contracts for a photographer to retain copyright:
- Make sure that your contract includes the purpose for which the client intends to use the photographs – it will be on this basis that you can assert your statutory right to restrain the use of the photograph for other purposes without a further agreement.
- Where the client owns the copyright absent an agreement to the contrary, it would be prudent to write the copyright remaining with the photographer into the contract.
- Failing the reservation of copyright by the photographer being secured, then a photographer will need to ensure that there is a license for them to use the images in promotion and advertising written into the agreement.
If you obtain a photography contract written by a lawyer who is not licensed in Australia, you will need to have it reviewed by an Australian lawyer who understands the implications of the Copyright Act 1968 (Cth), and the ways in which to ensure that you retain your copyright and are able to assert your moral rights under the law.