Freelance photographers often contact LegalVision about their copyright in commissioned photos. Whilst there are general rights that apply, each freelance relationship is different – it is best to contact a lawyer to establish what rights are available not only for photographers, but also by commissioning parties. For example, if photos have been commissioned for a private purpose such as a wedding, then the commissioner will retain the copyright in the photos.

Rights in Commissioned Photographs

If a photographer is commissioned to do work for another entity, the copyright in the photographs subsists with the photographer. Reproduction of any photograph will require the consent of the original photographer. Placing a copyright notice or watermarking a photo is a good way to indicate you are the original copyright owner. Remember, to operate as a freelancer, you must have an Australian Business Number (ABN).

Freelancer Photography Rights

If photos are taken as part of employed work, for example, contractor work or doing a shoot as an employee, the employer will own the copyright unless there is an agreement stating otherwise. It is important to have a lawyer review a contract before signing. Such a contract will limit what a commissioner can use the photo for, and the rights of the photographer as the original copyright owner of the photographs. Using commissioned photos beyond the purposes originally agreed is a breach of the photographer’s copyright.

Copyright for Photographers

In the Copyright Act 1968 (Cth), Section 35(5) is a provision which applies for photographs commissioned for a private or domestic purpose, where there is no agreement between the photographer and the client about who owns copyright. It states that if a photographer makes, for valuable consideration (a payment), an agreement with another person for the taking of a photograph for a private or domestic purpose, and the work is made in pursuance of the agreement, then the photographer is the owner of any copyright subsisting in the work by virtue of this Part. There are also special provisions for works made for, or first published by, a government (Commonwealth, State or Territory). The government owns copyright in the absence of an agreement to the contrary.

Photographs taken before 1 July 1998

The date the photograph was taken also affects who owns the rights in freelance photos, and when the client, rather than the photographer, was the first owner of copyright in a photograph in the absence of agreement about copyright ownership. If a photograph has been taken since 1 May 1969, and the client indicated purpose of photograph, the photographer can restrain use for any other purpose. Since 1 July 1998, if the client indicated purpose of photograph, the photographer can restrain use for any other purpose.

Conclusion

LegalVision has a team of great lawyers who can assist you in establishing whether you have rights in the photos you have taken. Please call our office on 1300 544 755 and our Client Care team will happily provide you with an obligation-free consultation and a fixed-fee quote.

Lachlan McKnight
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