• Troy Sinclair

Understanding Copyright & Photography

Signing a copyright contract

The term “Copyright” is often misunderstood especially when it comes to photography.

Let me give an understanding of how copyright and photography coincide in today's law. Whether it be for use in commercial, editorial, private, or otherwise.

It is often misconceived that the client who purchases your services as a photographer owns the copyright to the images but this is not the case. Let me explain...

"What is Copyright?"

Whether it be for use in commercial, editorial, private, or otherwise copyright and photography coincide in today’s law.

A common misconception is that the client who purchased your services as a photographer owns the copyright to the images. This is not so. When it comes to photography the term 'copyright' is often misunderstood. In simple terms, copyright means owning property. With ownership, comes certain exclusive rights. In photography this includes the right to:

  1. reproduce the photograph; and

  2. prepare derivative works based upon the photograph; and

  3. distribute copies of the photograph to the public by sale or other transfer of ownership, or by rental, lease, or lending; and

  4. display the photograph publicly.

The copyright of a photograph belongs to the photographer who presses the shutter button.

There is only one exception to this rule, if photographer is working for an employer; for example, a photojournalist working for a newspaper, then the copyright belongs to the employer.

It should also be noted that, in Australia, copyright lasts for 70 years after the death of the photographer.

For Australians, the law gives creators, like photographers automatic copyright as soon as a work is created, without needing to register. However, it is important to note that this automatic allocation of copyright only applies to Australia and certain other jurisdictions.

You will often see the familiar © or the word 'copyright' with a date and name of the copyright owner posted on creative works. A proper copyright notice is made up of three parts.

The first part is the © symbol, the word 'Copyright' or its abbreviation 'Corp.'. The second part notes the year when the work was first published and the third part is the name of the copyright owner. So the final form looks something like this: © 2011 Troy Sinclair. A photographer who creates a work is also granted moral rights. This means that the photographer is assigned three specific things:

  1. the right of attribution to ownership; and

  2. the right not to have authorship of their work falsely attributed; and

  3. the right of integrity of authorship.

A breach of your moral rights may occur if another website uses a photo of yours in a way that denigrates or attacks the image, or if the use is defamatory in any way.

"What are Creative Commons?" What is the difference between copyright and creative commons?

Creative Commons is a type of licensing where you grant others some of the rights that you have to the photograph.

For example, you may allow someone to reproduce your photo in an issue of a magazine. You still own the copyright to the photograph, but you allow someone else to use a piece of it.

There are different creative commons licensing packages that allow some flexibility with your licensing.

These may include whether you allow commercial use of your photo and whether you require certain attribution, such as your name or website, with the use.

Adding again to the complexity of copyright related cases, creative commons licences come in a variety of different forms, with differences in the specific wording and terms of each.

This means that a photographer wishing to pursue a copyright-infringement case through the appropriate channels will need to seek specific legal advice, depending on the wording of the particular licence chosen.

"What is Fair Use?"

Fair use is the right to use copyrighted materials without the copyright owner’s permission.

It is designed as an exception to the exclusive rights granted with copyright. It permits limited and reasonable use without permission as long as the use does not prejudice the copyright owner’s rights or interfere with normal exploitation of the work.

A classic example of fair use is a quotation from a book being reviewed.

Since an author does not review their own work, the impact of the quotation on their interests should be minimal. If, however, so much material is quoted that the review will substitute for a purchase of the book, the use will not be considered fair.

Thus, fair use is intended to allow the unauthorised use of copyrighted materials for the benefit of society, believing such use serves a higher purpose.