Copyright for creatives: photographers

Copyright for Creatives Series
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What is copyright?

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Copyright is a collection of rights designed to
acknowledge and protect the intellectual effort
of originality and creativity.
Owners of copyright in photos have exclusive
rights to:
• Reproduce the photos – for example, by
making prints, photocopying and digitising
• Publish the photo (make copies available to
the public for the first time); and
• Communicate the photo to the public – for
example, by posting the photo on a website
or emailing digital files of the photos

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Copyright does not protect…
What does copyright protect?
• Literary works such as books, articles, lyrics and code
• Artistic works such as photographs, paintings,
diagrams, graphics, and sculptures
• Music works such as sheet music
• Dramatic works such as plays, screenplays and
choreography
• ‘Subject matter other than works,’ including
recordings, films, podcasts, radio and TV broadcasts

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• Your ideas. It only protects the expression of ideas
• Names and titles
• People
• Facts
• Slogans

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How long does copyright last?
In Australia, copyright usually last for the life of the creator plus 70
years. If the details of the creator are unknown, copyright last from
the date of first creation plus 70 years. Works in which copyright
has expired fall into the public domain.
However, because the rules of copyright duration use to be
different, photographs taken before January 1 1955 are also out of
copyright.
Shakespeare Austen Beethoven Bronte

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Copyright and photography

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Who owns the copyright of photographs?
For photos, unless there is an agreement to the contrary, the
general rule is that the photographer is the first owner of
copyright.
There are, however, a number of exceptions to this general
rule, including: photos taken in the course of employment,
and commission photos.
Also, if more than one person is involved in the creation of
copyright material, or the material is created under an
agreement or by commission, it is a good idea to have a
written agreement stating who will own copyright.
In many cases a person who is not the copyright owner will
have rights to use the photographs in various ways (for
example, as a result of an express or implied licence).
Reference: Australian Copyright Council’s Photography & Copyright guide

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Photos taken
through course
of employment…
Employer usually
owns the
copyright

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Commission photos
• For photos taken before 1 May 1969, the person who paid for them
to be taken owns the copyright, unless the photographer and client
agreed otherwise.
• For photos taken on or after 1 May 1969 and before 30 July 1998,
the first owner of copyright in a commissioned photo is the
commissioning client, unless there is an agreement otherwise
• For photos taken on or after 30 July 1998, the general rule on
ownership depends on the purpose for which the photographs were
taken:
• if the photos were taken for “private or domestic purposes” (such as
family portraits, or wedding photos), the first owner of copyright in
them is the client, unless the photographer and client agree otherwise;
however
• if they were taken for any other purpose (e.g. commercial shots), the
photographer will be the first owner of copyright, unless the
photographer and client agree otherwise.
If someone owns copyright in a photo as a result of having
commissioned it (without having reached any other agreement about
ownership), the photographer has the right to restrain the use of the
photo for purposes other than those for which it was commissioned
(provided these purposes were made known at the time of the
arrangement). This rule applies to any photo taken on or after 1 May
1969. Even though the client is the owner of copyright, the
photographer can rely on his/her right of restraint to negotiate further
payment for uses that were not contemplated at the outset.
Reference: Australian Copyright Council’s Photographers & Copyright
guide

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Can a client reproduce a photo if the
photographer owns the copyright?
Even if the photographer owns copyright,
the client may be entitled to make copies, if
the client has an implied licence to do so.
The client will only have an implied licence
if it is clear from all the circumstances. For
example, if a client commissions a
photographer to take photos for use in a
brochure, the client will be entitled to use
the photographs for that purpose, even if
the photographer has not expressly stated
that she or he gives permission for this use.
Reference: Australian Copyright Council
FAQ

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I took photos for someone, without
charging them. Who owns the copyright?
If the photo was taken before 30 July 1998,
and no agreement about copyright ownership
has been made, the client owns copyright,
even if the payment has not actually been
made.
If the photo was taken on or after 30 July
1998, the photographer generally owns
copyright unless there is an agreement to the
contrary. However, if the photo was
commissioned for a private or domestic
purpose, the client owns copyright unless
there was an agreement to the contrary.
FAQ

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Do I need permission from the client who
commissioned me to take their photos
before I can include them in my
photography portfolio?
This will depend on who owns copyright in the
photos. If the client owns the copyright, you will
need the client’s permission to reproduce the
photos to include in your portfolio. However, if
you own copyright, you do not need
permission to reproduce them.
If your clients will own copyright in photos you
take, you may wish to include a clause in the
agreement allowing you to copy and
communicate the photos for your self-
promotion purposes.
FAQ

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People and people’s likenesses are not
protected by copyright. However, other areas
of law, such as defamation, can affect the
circumstances in which a person’s likeness
can be used.
Generally, if you have asked somebody to be
photographed, it is best to get a “model
release” or “talent release form” from that
person so you won’t have to worry later
about whether or not your use of resulting
photos will raise issues under areas of other
law.
Photographing people is a risk management
decision. If you take casual shots, for
example, photos of people in the street, and
you are only taking them for personal use, it
is low risk. However if you know that you
might later be using such a photo
commercially or for advertising purposes
(e.g. in a brochure), it is best to get a talent
released form signed by the people you have
photographed.
Photographing people

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Photographing places depends on whether you are taking the
photo for commercial purposes and whether the place you are
taking the photo is private or public property.
• In order to access a privately owned space you need
permission from the landowner, and he or she has the right
to impose restrictions on photography
• Just because people have free access to a place does not
mean that place is a public place in which you are free to
take photographs. Educational institutions (both government
and non-government schools), child care services, hospitals,
nursing homes, shopping malls, sports arenas, music
venues are considered to be private property; even if they
are owned by a local council or other government
organisation. Open markets, such as Melbourne’s Queen
Victoria Market are on private property so that photography
at those markets can be regulated by the operator of the
market. Museums, art galleries and amusement parks may
also have photography policies on the basis the location is
private property.
Reference: Australian Copyright Council’s Photographers &
Copyright guide
Photographing places

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Photographers also need to be aware of provisions in
other legislation which restrict commercial photography of
Indigenous, environmental and heritage sites. These
provisions are not related to copyright law but other laws
like environmental protection.
The Environment Protection and Biodiversity
Conservation Regulations 2000 introduced important
procedures and restrictions on photographers to take and
commercialise photos of Commonwealth reserves.
A Commonwealth reserve is defined as one proclaimed
by the Governor-General and includes places such as
Kakadu National Park, Uluru–Kata Tjuta National Park,
Booderee National Park, Australian National Botanic
Gardens, Christmas Island National Park, Pulu Keeling
National Park, Norfolk Island National Park and
Commonwealth Marine Parks and Reserves.
Photographing places for commercial purposes

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There are provisions in the copyright law that allow
people to take and publish photographs of buildings
and architectural craftsmanship without infringing
copyright.
However, photography is restricted in some areas
by local councils or authorities. Examples of this
include Luna Park, Darling Harbour, Circular Quay,
and also some sports stadiums.
The regulation of photos is primarily directed to
commercial photography and disruptive
photographic activities.
Reference: Australian Copyright Council’s Photographers & Copyright
guide
Photographing buildings and monuments

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Do I need permission to photograph a
building?
Generally, no. Although a building is
protected by copyright, a special exception
in the Copyright Act allows buildings to be
photographed without permission. Be aware
though, that the owner of a property may
impose restrictions regarding entry onto the
property.
Reference; Australian Copyright Council
FAQ

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Do I need permission to photograph
artworks displayed in public places?
• Most times you need permission from the
copyright owner
• However, you can photograph and publish a
sculpture or work of artistic craftsmanship
that is permanently situated in a public place
• This does not apply to other public art, such
as murals
• If the public place is a gallery or museum,
remember that your rights to photograph may
be limited by the conditions of admission.
FAQ

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Copyright
considerations when
posting photos online
You should be careful to read any relevant terms and conditions if you want to upload your photos to websites and social media sites that are
not controlled by you. This is because, in order to use many of these sites, you have to grant certain rights in your work to the organisation.
You’ll need to ensure you are comfortable with the terms and that any rights granted are in line with what you want to do with your photos later.
For example, if you know you may want to sell copyright in your photos to someone else at a later date, you should not upload them to social
media sites that take rights in the photos.
Copyright considerations when posting photos online
• Uploading your photos to a website or blog does not mean that you lose
copyright protection.
• However, given that it is easy for people to reproduce photos they find on
the internet, it is a good idea to take some practical measures to help
protect against this, such as watermarking your photos with your name
and the copyright notice.
• You should be careful to read any relevant terms and conditions if you
want to upload your photos to websites and social media sites that are not
controlled by you. This is because, in order to use many of these sites,
you have to grant certain rights in your work to the organisation. You’ll
need to ensure you are comfortable with the terms and that any rights
granted are in line with what you want to do with your photos later. For
example, if you know you may want to sell copyright in your photos to
someone else at a later date, you should not upload them to social media
sites that take rights in the photos.

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How do I protect images on my website?
Preventing digital images posted on your website from
being copied or used without your permission is almost
impossible. However, these suggestions can help:
•Watermark your images with a copyright notice
•Add your contact details and copyright notice to the
image metadata
•Disable right click saving of images on your website
Whichever method you choose to use, you should
always include a statement on your website specifying
what your image sharing and re-use policy is. For
example:
•Re-use with attribution only
•Re-use with attribution and link back to your website
•Re-use only with your written permission, or
•Any re-use will be considered copyright infringement
Reference: Arts Law Centre Australia
FAQ

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Copyright
considerations when
posting photos online
Nina Paley, Thief, used under Creative Commons Attribution 3.0
If you need to reproduce someone else’s photo, obtain permission from the copyright owner.
Permissions should be in writing.
Also remember that when using someone else photograph, photographers have the right to:
• Be attributed as the creator of the photo
• Take action if work is falsely attributed
• Take action if work is distorted or treated in a way that is prejudicial to their honour or
reputation

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Open Access Licensing
The majority of open access works are licensed
under Creative Commons
OER Hub & Flipped Learning, Creative Commons Licenses for Flipped Educators http://oerhub.net/collaboration-2/all-the-
open-courses/ used under CC BY https://creativecommons.org/licenses/by/2.0/

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Where to find open images?
• Pixabay
• Pexels
• Noun Project
• Unsplash
• Gratisography
• Negative Space
• Burst
• SnockSnap
• Flickr
• Moose Lake Cartoons
• Open ClipArt
• Web Donuts
• Wikimedia
• Easelly
• Freemind
• Gimp
• Photo Collage

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This presentation is licensed under
Creative Commons- Attribution (CC-BY)

Copyright for creatives: photographers

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