copyright law and photography in Australia

see also:

• is your photograph legal and ethical?
• copyright information:
  • in general, you cannot copyright an idea, only its representation
  • World Intellectual Property Organisation - body that deals with copyright on an international basis - see FAQ here
  • whilst some countries such as USA have a copyright registry body with which you can register your copyright to assist in legal proceedings, registration of copyright is not required in most other countries such as Australia.
  • Australian Govt's document on fair use and fair dealing in relation to copyright
  • Australian Copyright Council information sheet for photographers
  • www.artslaw.com.au 
  • ASMP's Copyright Guide for Photographers
    www.asmp-nj.org/asmpnjcopy.html
  • Digital Images and Fair Use Websites
    www.utsystem.edu/ogc/intellectualproperty/portland.htm
  • D-65 Business and Legal Resources for Photographers
    www.d-65.com/photographers.html
  • Photographers' Guide to Privacy
    www.rcfp.org/photoguide/intro.html
  • A NSW ex-law practitioner's discussion paper on photography and law in Australia
  • UK Photographers' Rights Guide
    www.sirimo.co.uk/ukpr.php/2004/11/19/uk_photographers_rights_guide
• international law cases:
  • Daniel Morel vs AFP/Getty Images who used his photo hosted on Twitter on front page newspapers and photographer wins $1.2m
  • Fair use of a copyrighted image on a US commercial website was OK - here's why
• visual plagiarism:
  • http://www.epuk.org/The-Curve/456/visual-plagiarism 
• photographing art works or buildings
  • even some buildings are protected by copyright such as the Eiffel Tower at night (thanks to lights installed in 1985), the Louvre, Rome's station

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.

• 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:
    •  in which case the first copyright resides with the employer/government unless agreed otherwise or in the following situations relating to a photographer not being a freelance photographer, who works as an employee of a newspaper or publisher:
      • for photos taken after 30th July 1998, the photographer owns the copyright to photocopy or include them in books, but all other copyright resides with the publisher;
  • 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 ¹⁾
• 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:
  • non-owners of copyright may become owners of copyright of a derived work if they modify an image sufficiently as to make any important, distinctive or recognisable part of the image no longer visible and as long as the photographer's moral rights are not infringed.

• 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:
  • the information must be of a “confidential” nature;
  • the information must have been communicated in circumstances that indicate that the person receiving it must respect its confidential nature;
    • begin any conversation with words to the effect that the information, including ideas, disclosed are confidential and must not be discussed with anyone without first obtaining your [written] consent. 
    • marking any documents submitted “CONFIDENTIAL”.  If copyright subsists in your documents, also include the copyright owner's notice. 
• see http://www.artslaw.com.au/LegalInformation/ConfidentialInformation/default.asp 

• 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:
  • defamation:
    • The unauthorised use of the image would need to either lower the public’s estimation of the person, expose the person to hatred, contempt or ridicule, or cause the person to be shunned or avoided.
    • this is most likely to be utilised if the person or business is in the public eye.
  • the Federal Trade Practices Act and State Fair Trading Acts:
    • these laws prohibit commercial conduct which misleads or deceives consumers. To prevent the unauthorised use of an image under this law it is necessary to show that the use of the image would mislead or deceive consumers. This is most likely to occur in the context of false portrayal of endorsement of products or ideas.
  • the law of passing off:
    • It is designed to protect the reputation of a business from misrepresentation.
    • To use this law, you must already have a reputation in the public eye, and thus this law may not be of much utility for the average person.
  • contract law:
    • if you have entered into a contract with the photographer, such as by use of a valid model release +/- a photo-shoot brief which outlines what will be included in the photo shoot, then, photos which fall outside of the brief or the exclusion clauses on the model release may be regarded as unauthorised and not part of the contract.
    • if you do not have written agreement of the brief or exclusions on the model release (eg. nudity), then it is very much less likely that contract law will be of assistance.
• this is why photographers require models to sign model releases - to ensure both parties are clear on the agreement.
• see also:
  • http://www.artslaw.com.au/LegalInformation/UnauthorisedUseImage.asp 

• 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:
  • see http://www.artslaw.com.au/LegalInformation/BusinessNames.asp