Considerations Before Copyrighting Your Photograph or Image
George Raptis
If you are thinking of sharing your original photograph or image online, you might also want to protect it from being copied and used by others. Copyrighting your photograph or image is the most effective means of protection. However, whether you can protect your original work from being copied will depend on whether you have exclusive rights to the photograph or image. This article outlines:
- what copyright is;
- whether you have copyright ownership over your image; and
- ways to protect your copyright.
What Is Copyright?
Copyright is a form of intellectual property that prevents others from copying your original material without your permission. Original materials protected by copyright typically include books, videos, songs and computer software. It is important to note that copyright cannot protect ideas alone. For example, copyright can protect the lyrics of a song but not the idea for a song.
Australian copyright law automatically protects original materials. This means that copyright does not have to be formally registered. Instead, copyright protects original materials when they are written down, recorded or captured in an image.
Duration of Copyright
The duration of copyright protection largely depends on the type of creative material it protects. When copyrighting a photograph or image, copyright protection will last for the life of the creator and a further 70 years after the creator’s death.
Who Owns the Copyright to a Photograph?
If you own the photograph in print or digitally, this does not necessarily mean that you are the copyright owner of the photograph. It is important to know who owns the copyright to a photograph or image to determine your rights.
Generally, the creator of the original work will be the copyright owner. However, copyright ownership can change in the following scenarios:
- if you produced the photograph through commission; or
- if you took the image for your employer.
Commissioned Images
If a client commissions an image for a private or domestic purpose, like wedding photos or family portraits, it is generally the client who owns the copyright to the image. However, you can make an agreement with the client that gives you copyright ownership as the creator before taking the commissioned photograph.
If a client commissions an image for a commercial purpose, copyright ownership remains with the creator. For example, if a client commissions you to take photographs of clothing for an online fashion business, you are the copyright owner of those images. However, the person who commissioned the images can use the photographs under the terms set out in your employment agreement.
Images Created During Employment
If you are an employee of a business and take photographs or images as part of your employment duties, your employer will usually own the copyright to the image. For example, if a fabric company employed a designer to create new patterns for their products, the fabric company would own the copyright to these patterns.
Protecting Your Copyright
As previously mentioned, copyright protection in Australia is automatic and does not require registration. However, you can take further steps to protect your work from being copied by others by:
- using copyright notices;
- issuing copyright infringement notices; and
- licencing your copyrighted material.
Using Copyright Notices
Copyrighting your photograph or image with a notice informs others that copyright protects your original work. These notices are usually printed on copyrighted works and include:
- your name;
- the date that you created the photograph or image; and
- the ‘©’ symbol.
Whilst there is no legal requirement to place copyright notices on your photograph or image, it can be an effective way to assert your copyright.
Copyright Infringement Notice
If you believe that your photograph or image has been copied without your permission, you can issue a copyright infringement notice to the person who copied your image. Issuing an infringement notice can protect your copyright. A copyright infringement notice will typically:
- alert the person to the fact that they have misused your original work;
- request that the person “cease and desist” their activity, meaning they remove the photograph from their publication and stop reproducing it; and
- warn the person of potential legal proceedings if they fail to comply with the copyright infringement notice.
Licencing
Having the exclusive rights to use copyrighted material does not mean that others can never use your photograph or image. As a copyright owner, you can permit others to reproduce your work through a copyright licence. These licences are an agreement between you and the intended user of your photograph and set out how they can use the image. Copyright licences can also be a great way to profit from your original work.
Key Takeaways
Copyright law can protect your original photographs and images from being reproduced by others without your permission. Generally, you are the copyright owner of a photograph if you created the image. However, copyright ownership can change depending on whether the photograph is commissioned or taken as part of your employment. You must know who owns the copyright to your image or photograph, as this will determine whether you can take steps to strengthen your copyright claim over your work.
If you need further trade mark legal assistance with copyrighting your photograph or image, contact our experienced trade mark lawyers on 1300 657 423 or complete the form on this page.
Frequently Asked Questions
Regardless of whether they have cited you as the creator, copyright infringement can still arise if you have not permitted usage of the photograph.
Under the Copyright Act, moral rights belong to the creators of original works. Moral rights include the right to be identified as the creator of the work. It also includes the right not to have a person falsely assert that they are the creator of the work and to not have original work disrespected in a way that ruins your reputation.
You do not lose your copyright once you sell your original work. Usually, the buyer has purchased the right to own the copy of the photograph sold and not the right to make their own copies.