Arts Law often received calls from freelance photographers on the question of who owns copyright in commissioned photos. A lot of commissioners automatically assume they own copyright in the work they commission, as well as owning the negatives, but this is simply not the case.
Copyright in the photographs
The general rule is that where a photographer is commissioned to do work the copyright in the photographs remains with the photographer. This means that no one else is allowed to reproduce that photograph without the original photographer’s consent. It’s a good idea to use a copyright notice on your work and indicating that you are the copyright owner.
There are a number of exceptions to the general rule. If photos have been commissioned for a private or domestic purpose, such as a wedding or family portrait, then the commissioner will retain the copyright in the photos. Copyright is also lost to the commissioner of the photographs if they are a State or Federal government department. Also, if photos are taken as part of employed work, for example, doing a shoot as an employee of an advertising company, the employer will own the copyright unless there is an agreement stating otherwise.
Modifying copyright ownership by agreement
You should be aware that copyright ownership can be modified by written agreement. A client may try and obtain rights to the photographs he or she is commissioning by asking the photographer to sign a contract assigning copyright in the photographs to the client. If you are given a contract to sign have it checked first by a lawyer.
Photographs taken before July 30, 1998
If a photo was commissioned and taken before July 30, 1998 the copyright remains with the commissioner, regardless of whether or not it was taken for commercial purposes. However, if the commissioner made it clear what the purpose of the photography was at the time of commissioning the photograph, the photographer can prevent the commissioner from using the photos in any way beyond those stated purposes.
How will the photos be used?
The extent to which a commissioner can use the freelance photographs taken is limited by what has been agreed upon. The photographer, as copyright owner in their photographs, can dictate terms for reproducing their work including where it may appear and for how long. Using commissioned photos beyond the purposes originally agreed is a breach of the photographer’s copyright.
A photographer whose work is commissioned for private or domestic purposes has similar rights to those photographers who have taken commissioned photos prior to July 30, 1998. Although a wedding photographer may not own the copyright in their work, they still have the right to stop the commissioner from using the photos beyond the purposes for which the commissioner stated they were being taken. For example, if the client asks for photos to be taken of his daughter’s marriage to distribute to friends and reproduce in her wedding book, he can not start running off copies to promote his own dress-making business.
Who own the negatives?
As copyright owner you have the exclusive right to reproduce your photos. However, if your paying client demands the negatives you are left in a sticky situation, faced with the prospect of losing the most effective means of copying your work. Does paying for the shots also mean a right to own all the photographic materials?
This is a very grey area. Just as with clearing up copyright ownership from the outset, the best way to deal with this problem is by covering yourself in writing. Develop a standard agreement for all your clients that not only spells out who retains copyright, but also clearly states who has the rights to the negatives, transparencies, and any other materials in the photo processing process.
Australia Copyright Council Information Sheet: ‘Photographers & Copyright’.
Corin McCarthy was a volunteer and Marcus Fowler was a Legal Officer at Arts Law.