173. COPYRIGHT - THE BASICS

◾️ KEY POINTS ◾️

There seems to be a lot of discrepancy on the topic of "copyright" in the creative industry. As there is a broad spectrum of areas within the creative industry, for today I will mainly focus on Copyright for Photographers and clear up some common misconceptions.

The summarised information I will provide in this post stems directly from the Australian Copyright Council - from their document, 'Ownership of Copyright'. I highly recommend that all creatives visit this site (actually, everyone as it applies to most people in some way!) so that you are aware of the current rules and your rights and what you need to do to protect those rights (legally) and prevent future lawsuits etc ruling against you.

Here are the summarised points:

For photographs created BEFORE 30 JULY 1998, the creator is not normally the copyright owner, but rather the client! (Unless there was an agreement stating the contrary).
For photographs commissioned AFTER JULY 30TH 1998, "the PHOTOGRAPHER is the owner of copyright except if the photograph was commissioned for private or domestic purpose."
If the photograph was commissioned for a private or domestic purpose (e.g. a family portrait), the client owns the copyright unless there is an agreement stating otherwise.
The creator of copyrighted works is not necessarily the owner of copyright.
Agreements will always take precedence over ownership provisions which are set out in the copyright act
It is possible to have more than one copyright owner
Ownership of a physical item is completely separate to ownership of copyright. For example, an individual may own the physical memory card on which the digital files are stored, but the person who took the photographs often owns the actual copyrighted files. Also, if you buy a physical printed photograph that does not necessarily make you the owner of copyright, it only makes you the owner of the physical item itself.
If you are a creator of copyrighted works, you will also have MORAL RIGHTS to what you create (whether or not you are the copyright owner).... (I will need to read the separate document on 'moral rights' and do another blog post for this...)
Even if a legal requirement does not exist, it's always beneficial to have agreements in writing.
In absence of an agreement, the copyright owner will be determined by reviewing the general rules on ownership set out in the COPYRIGHT ACT.
In general, the 'author' is usually the 'first owner' of copyright. For photography, the photographer is the 'author'
The above point may not apply if the author is an employee and creates the copyrighted works as a part of his general duties as described in his job position.
Point 11 may also not apply if the work is a commissioned photograph, portrait or engraving
Generally if you are employed as an employee, the employer is the first owner of copyright and this will generally be specified in the employment agreement.
Point 14 does not apply if the creator of copyrighted material is a freelancer or independent contractor - in which case they will be the first owner of copyright
Having rights to reproduce material does not necessarily mean you own the copyright. For example, a company may pay a photographer to produce images for them but it is necessary to have an agreement with them stating what they can and can't do with the images (before the job is taken out). (I will need to also read the document 'Assigning and licensing Rights' to summarise more of this section...)
For films and videos the first owner of copyright is normally the person/company who made the arrangements to make the film.
For sound recordings - the 'maker' is normally the first copyright owner. However if an agreement is made this agreement will take precedence over this rule.
Copyright can be jointly owned if there is an agreement/ if both authors have made contributions to the creation of the work.
For more information visit: www.copyright.org.au