Some comments on copyright
I have put together this page of comments about copyright and photography in Australia. This is not legal advice – I am not a lawyer – I am not offering legal advice.
For legal advice on copyright matters you need to consult a copyright specialist or solicitor.
On the basis that you accept that these are comments only, the following general comments can be guidance to possible copyright issues. After that — please seek your own legal advice.
Trying to get a clear picture of which bits apply to your situation is tricky.
As a photographer, legatee or executor of a photographer’s estate in Australia you need to inform yourself about Australian and International copyright provisions and duration. In particular as Copyright in photographs in Australia has different conditions from the fine arts.
Exceptions apply to photographs made before a certain date that can see the work of living photographers out of copyright. Various classes of commissioned work at certain defined periods are copyright to the commissioner, not the photographer.
Copyright as an asset passes automatically to the artist’s legatee/s until the expiration of the relevant copyright period.
Most importantly Copyright is also more than an asset. It is a means of control over how, when and by whom photographs are published including in moving images and on the internet.
A legatee becomes a default ‘artistic executor’ determining if some uses are not appropriate.
A recommended fact sheet pdf on photographers and copyright is available from the Australian Copyright Council
Key points they list are:
- Generally, copyright in photos lasts for the life of the creator plus 70 years.
- Copyright (in Australia) has expired in photos taken prior to 1 January 1955 (but underlying moral rights and the separate copyright in art and architecture appearing within the photos might still remain).
- Use on website or in a documentary might have to consider duration of copyright of foreign jurisdictions.
- Ownership of a photo varies depending on the circumstances under which it was taken.
- You will not own copyright just because you own the camera.
- Photographers also have moral rights in relation to their works.
More detailed pdf on Photographers and Copyright are also available from the same Australian Copyright Council site
A Few Points
Current commercial photographers will find the Australian Institute of Professional Photographers video interview between Chris Shain and copyright lawyer Ian McDonald of Simpsons very practically useful.
The discussion of moral rights is interesting – it is at about 30 mins in. Simpsons are the UBER arts and museum sector copyright and law specialists.
AIPP (The Australian Institute of Professional Photographers) has folded so might be worth downloading the interview in case it disappears.
Collectors & Legatees
My concerns are not with current practitioners as much as with collectors and legatees.
Owning a photographic print or negative or transparency generally doesn’t grant any copyright unless you have inherited the copyright under an estate of a photographer still in copyright.
If the photographer was an employee and the photo was taken pursuant to their employment, the copyright belongs to the employer but there are special rules for employees of newspaper and magazine publishers.
For photos taken by employees of newspaper or magazine publishers, different rules apply, depending on when the photo was taken:
- For photos taken before 1 May 1969, the publisher owns copyright.
- For photos taken on or after 1 May 1969 and before 30 July 1998, the publisher owns the rights for newspaper and magazine publication and for broadcasting, and the photographer owns all other rights (including the right to put the photos online or in a book).
- For photos taken on or after 30 July 1998, the photographer owns the rights to photocopy the photos and include them in books; the publisher owns all other rights
For more on this you need to check sources such as the Australian Copyright Council fact sheet – page 2 “Photos taken in the course of employment”.
Some examples of copyright issues: (Not legal advice!)
- 1970s freelance photographer Carol Jerrems was employed by filmmaker Esben Storm to make stills on one of his productions – copyright in that body of work is asserted by Storm’s estate.
- The Estate of Harry Seidler owns copyright in photographs commissioned from Max Dupain (who died in 1992, so all his commissioned photos were taken before copyright law in commissioned photos changed on 1 July 1998). There are also moral rights of the architect of any building to be clearly identified in any publication or public display of those images.
- Where interior or exterior photographs contain artworks – the artist of those artworks has separate copyright rights.
- Max Dupain is on public record as saying that his photos of architecture were all commissioned so this means the commissioning architect owns copyright in such architecture photos – even if few know to assert such rights.
- The Fairfax photo archive ended up in private hands of an American dealer and when a large part was auctioned in Sydney several artist’s estates challenged the ownership of the prints as these were supplied not as commissions but on request for illustration material. Legally the right of the auction house to reproduce the works in their catalogue and online required the copyright holder’s permission.
- While the works are in copyright artists or artist’s estates are often asked to approve publication requests from public archives (who usually charge their own “access fee”) that hold original prints or negatives by the artist.
- The artist or Estate the artist can also determine their own additional copyright fee.
- Mostly the income from posthumous copyright is modest.
- Copyright Agency (Visual Arts) formerly called Viscopy, can take on representing an artist or their estate and can secure fees that an individual copyright owner might be too hesitant to charge. Artists estates are also easier to find when listed with an agency.
- A photographer or legatee can make any conditions they like in regards to granting usage in still or moving image productions. These conditions can include limiting the usage strictly to the specific first edition of the publication for which it was requested, prohibiting cropping and blow ups or light box displays insisting on visible credit to the copyright holder.
- You can also register screen rights when images appear in films and documentaries. If reprinting of negatives is involved the copyright holder is taking on a role as artistic executor and needs to have a precise explanation and/or sample of the quality of the new print and how it is credited eg a credit saying it is a ‘posthumous print from original negative for information purposes’ ( so as to distinguish the new print form the hand-crafted print aesthetic of the original artist)
- Requests can come close to publication but still need scrutiny.
- Most archives acquiring photographs seek a non-exclusive right to reproduce works in their own publications. External or commercial publications still have to be referred to the copyright holder.
- It is important to keep Estate contact details updated with the archive.
- Artists or their estates with no direct heirs might consider signing an advance directive granting a full copyright to an archive for the works in their collection to come into play at the time of their or partner’s death rather than allow the full duration of 70 years to apply (if it does). Time is now money and if the archive or external publisher has to spend weeks trying to find an obscure distantly related copyright holder then that work might just not get used and the artist’s legacy is diminished.
- When works are in a public collection they are being cared for and made available to the public forever. Often they are actively promoted in shows and publications. Copyright requests take time to manage and supporting public institutions by making copyright easier for them is worthwhile.
- So if you have an archive of your own as a photographer or have inherited an archive or prints or negatives, read the Australian Copyright Council pdfs closely and work out whether copyright applies to all parts of the archive. If you can, speak to someone experienced in granting permissions of similar works.
- It can make a difference to the success of a proposed donation or sale of the archive to know what copyright is held.
- As part of the sale or donation you will be asked about the copyright owner. If you say yourself you become liable for any disputes.
- So in light of the above:
- check whether you do hold copyright if you are a direct inheritor of an artist estate. You need to know;
- What is the death date of the maker
- Was the maker a direct employee of an organisation or client
- Was the work commissioned
- What is the date of the work
- The above is for Australian photographs.
- Different copyright duration and provisions apply overseas that could affect donation or sales to foreign organisations, use in a documentary that is to be distributed internationally or published online – where other countries’ laws may apply.
- So if you are a living artist it’s a good idea to MAKE A WILL with specific reference to copyright assignment or at least put in writing how or by whom you would like your copyright to be managed.
- Including a specific assignment in your will to an individual to carry on until expiry of copyright can clarify administration and avoid disputes. It seems unlikely in Australia at this time but copyright has been extended overseas to 100 years.
- There are regular copyright seminars through the Australian Copyright Council but not cheap. Maybe get a group together and send one person to then report back.
- A future entry will consider posthumous printing – an equally complex issue but with more fun pictures.
I am going to repeat and stress again
This is not legal advice – I am not a lawyer – I am not offering legal advice
For legal advice on copyright matters you need to consult a copyright specialist or solicitor.
The above are general comments (not legal advice) to alert you to possible copyright issues.
For more on Parting With Your Art — — click here