copyright law and photography in Australia
see also:
Disclaimer: the following is NOT legal advice, as I have no legal qualifications to give it, but is my understanding of the situation as it stands in Australia, derived from Australian Copyright Council information sheet for photographers for use as a rapid reference for photographers coming to or living in Australia.
copyright and photography in Australia
as a general rule, the photographer owns the copyright of all images he or she takes, irrespective of who owns the camera or equipment, with the exception of the following situations:
there is an agreement from the photographer that states otherwise;
if more than one person is involved in the creation of the image, then there should be a written agreement as to who will own copyright
if the photographer takes the photo as part of their employment or for the government:
commissioned photographs where a client pays the photographer (I will only include the current rule, not pre-1998):
if the photographs are taken for “private or domestic” purposes such as family portraits or wedding photos, then the client owns the copyright BUT the photographer has the right to restrain use of the photograph for purposes other than for what it was commissioned.
if the photographs are for commercial purposes, then copyright resides with the photographer unless agreed otherwise, however, the client may still have implied licence to make reproductions if it is for the commercial purpose as agreed.
creative performances may be subject to copyright law with each aspect of a performance subject to copyright such as the music, scripts, background scenery or costumes, and choreography, hence to video or photograph a performance, even one with your own child in it, may require a licence
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copyright duration:
copyright of photographs last for the life of the creator plus 70 years (but if the government owns it then it is 50yrs from 1st published or indefinite if never published), but for photographs taken prior to 1st Jan 1955, their copyright has expired.
once a work is no longer under copyright, it can be said to be in the “public domain” - just because a work is displayed in a public forum does not mean that it is public domain as it still may be copyrighted.
copyright protection is automatic:
one does not need to do any paperwork to register for it, and in the case of a photograph, copyright commences from the moment it is taken, but for added protection only to assist in legal cases and to inform the public, the published work should be marked with the copyright symbol, the year the work was created or first published and the owner of the copyright.
owners of the copyright have the exclusive right to:
reproduce, copy and to broadcast to the public such as by websites.
assign (ie. sell) or license (ie. permit others) their rights, with or without limitations, which should be in a written agreement but this is not a requirement, but absence of an agreement will make it difficult in disputes.
photographers also have moral rights in relation to their works to impose certain obligations on people who use their works:
be attributed as creator (hence if a model posts a photograph on a website of themselves, they should ensure the photographer's copyright is displayed unless there is an agreement otherwise).
take action if a work is falsely attributed
take action if their work is distorted or treated in a way that is prejudicial to your honour or reputation.
derived works:
aspects which copyright does NOT protect
this is covered by the law of confidential information which prevents the unauthorised use and disclosure by a person of another’s confidential information, including ideas, that are communicated in trust and confidence:
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a person's image
ie. the image of a person within a photograph, not the actual photograph you have taken
Unlike the USA which has a law called the right to publicity, there is no one law in Australia preventing the unauthorised use of your image as a person.
Copyright law is of little assistance in this as it relates to ownership of the copyright and does not cover protection of a person's image.
the current Privacy Act will NOT apply to an individual who posts an image of another person without their consent (see below).
there are 4 main areas of law which may be of use in preventing unauthorised use of your image:
this is why photographers require models to sign model releases - to ensure both parties are clear on the agreement.
see also:
ownership of physical items
ownership of the physical items such as negatives or digital files is SEPARATE to copyright ownership, the owner being the person who paid for the items. If a photographer has charged a client costs for the film, the client will physically own the negatives, but the photographer may still retain possession and have a duty of care to keep them safe and return them to the client when requested. The corollary is that even if a person owns the negatives, they may not reproduce images from them unless they also have copyright licence to do so.
trade marks or business names: