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If you are a freelance photographer, you may wonder who owns the copyright in commissioned photos. Whilst there are general rights that apply to copyright in commissioned photos, each freelance relationship is different. This article sets out what: 

  • copyright is; and
  • rights you are likely to have, depending on your circumstances.

What Is Copyright?

In Australia, copyright gives you automatic rights and free protection for your original artistic work. There are laws that govern the extent to which you own the copyright of your photographs. The type of agreement in place between you and the party paying you will generally determine: 

  • what rights you each have in relation to the photographs or photography services; and 
  • how to use these photographs.

What Are My Rights as a Freelance Photographer?

As a freelance photographer, you usually own copyright in the photographs you take. Placing a copyright notice or watermarking a photo is a good way to indicate you are the original copyright owner. 

To operate as a freelancer, you must have an Australian Business Number (ABN).

However, there are instances where you will not own the copyright of your photographs. Most commonly, these include where another party has paid you to take photographs for them. This is called commissioned work. 

If somebody hires you to take photos (for example, as a freelance wedding photographer or a fashion photographer employed by a magazine company), you should be aware of the rights that you have to the photographic works you have created. Copyright in your work is automatic in Australia and it sits with you as the person who took the photograph. However, a lot of the time, the agreements that you enter into to provide your photography services may try to shift any rights that you have in the work to the person who is paying for you to take the photos. 

Someone who pays for your photographs (or to use the photographs in a certain way) will be able to use them for the specific purposes for which they commissioned them. If the person paying you for your photography services uses your photos for a purpose outside the agreed scope, this may be a breach of your copyright.

What Are My Rights as an Employee or Contractor?

If your employer commissions you to do certain work for them, the copyright in your photographs remains with your employer. You will still have rights to reproduce the photographs in books or make copies of your work, but your employer will generally own all the other copyright in the work.

If you are being asked to sign a written agreement before taking photographs, you should ask a lawyer to review the agreement before signing. 

For example, this could be an:

  • employment or contractor agreement; or 
  • agreement that engages you as a freelance photographer. 

These types of agreements generally specify the various commercial details of the relationship between you and the person who engages your services. Depending on the type of arrangement, the agreement usually includes key information such as:

  • the price of the your services;
  • how long the shoot might be for;
  • whether you will provide any additional services (e.g. retouching); and 
  • what limitations there are on ownership and use of the work.

The agreement will also specify whether the employer owns the intellectual property rights to your work.

What Are My Rights Under Another Type of Agreement?

You can enter into an agreement with other people outside the employment setting. Where there is an agreement in place and the other person has paid you for your photography services, the other person owns the copyright to your photos.

Where there is an agreement in place but you have not been paid, it is important to figure out whether a contract of service exists. This will determine the ownership of copyright in your photography work. Factors which may indicate that there is no contract of service include where you:

  • were ‘employed’ to complete a specific task;
  • were paid a lump sum;
  • had the freedom to decide when and how to complete the work; and
  • were not required to give your services exclusively.

However, if you were commissioned to take photographs between 1 May 1969 and 30 July 1998, different rights apply to you. You retain the copyright in the photographs if:

  • somebody paid you to provide photography services to another person; and
  • you took the photographs before 30 July 1998.

Key Takeaways

Whether you retain ownership of copyright for your photographs or photography services depends on the:

  • circumstances of your employment;
  • contract you have signed; and 
  • nature of the work you were engaged in. 

Before signing an agreement, it may be worth having a conversation with your employer to provide you with clarification about your intellectual property rights. If you need help establishing whether you have rights in the photos you have taken, contact LegalVision’s IP lawyers on 1300 544 755 or fill out the form on this page. 

Frequently Asked Questions

What is copyright?

In Australia, copyright gives you automatic rights and free protection for your original artistic work. You do not need to apply or register for it.

Do I own the copyright in my photographs as a freelance photographer?

As a freelance photographer, you usually own copyright in the photographs you take. Placing a copyright notice or watermarking a photo is a good way to indicate you are the original copyright owner. 

Do I own the copyright in my photographs as an employed photographer?

If your employer commissions you to do work for them, your employer usually owns the copyright in your photographs. You will still have rights to reproduce the photographs in books or make copies of your work. However, your employer will generally own all the other copyright in the work.

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