BALDWINS • FoodLegal

Australian Lawyers and Consultants

Photographic Angles of the Law

December 2001

A photographer is commissioned to take photos at a wedding. Who can reproduce the photos? Who is the owner of the copyright of photographs printed in magazines or newspapers? If commissioned to create a portrait, does the photographer retain any rights? This article sets out a brief outline of what copyright is, who it protects and for how long.

Rights of Copyright Owners

Owners of copyright have the exclusive right to reproduce the work (eg prints and photocopies), publish the work for the first time and communicate the work to the public. Copyright will be infringed if someone other than the copyright owner uses the exclusive right without their permission.

Period of Copyright

Copyright protects a large range of materials including photographs, artistic works, written material, musical works and films. Under Australian law, copyright generally provides protection for works for 50 years after the year of the author’s death. However, the period of protection for photographs is different and can vary according to when a photograph was taken. Photographs taken before 1 May 1969 are protected for 50 years from the end of the year they were taken. Photographs taken after 1 May 1969 are protected for 50 years from the end of the year of first publication.

Is there a contract applying to your situation?

A specific contract overrides general principles of law outlined in this article; therefore, specific advice must be sought for each situation. Baldwins prepares contracts dealing with copyright issues, as well as advising on specific contractual issues.

Commissioned Photographs and Portraits:

The circumstances in which the photo was taken can determine the ownership of the copyright. For example, if a photographer was commissioned to take photographs at a wedding, for what might be described as ‘private or domestic use’, the client would own the copyright, unless otherwise agreed. In contrast, copyright in a photo taken for commercial purposes belongs to the photographer, unless otherwise agreed. For a photo which is a commissioned portrait and created before 30 July 1998, in the absence of an agreement, the first owner of the copyright will be the commissioning client. However, in such a case, the photographer or artist retains a “right of restraint” over that work, preventing it from being used in any way not contemplated in the commissioning agreement.

Unless there is an agreement to the contrary, the first owner of the copyright of a photo taken by an employee of a newspaper or magazine publisher will be the employer publisher if the photograph was taken as part of the employee’s usual duties. For any photo taken up to 30 July 1998, the publisher owns the rights for newspaper and magazine publication and for broadcasting, and the photographer owns the other rights such as book publication rights. For any photo taken after 30/7/98, the photographer owns the rights for photocopying and inclusion in books; the publisher owns all other rights. The position differs for a freelance photographer.

Baldwins advises on copyright and other intellectual property rights relating to technology, art, music, entertainment, food and other product merchandising. We like to ensure that your contract avoids any uncertainties that might give rise to a dispute.

For further information, contact Joe Lederman at BALDWINS, Australian Lawyers & Consultants.

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