Copyright and Copywrong
When visiting my niece a while ago she was working on a school assignment. I noticed that she was using Google Images to locate and copy pictures into her document. Being the nosy parker that I am, I asked if the teacher had talked to the class about copyright and the need to include image information in their referencing. She explained to me all about what they had been told about plagiarism, but looked at me blankly when I explained that copyright applies to images as well as text.
It wasn’t a suprise to me, a quick glance at Social Media highlights that most people don’t know that Copyright applies to images as well as to written works.
The Fair Use provision in the Australian Copyright Act allows for the use of copyright works for educational purposes. That doesn’t override the moral right of an image creator to be credited for their work. Copyright is a pretty dry subject, but here is what I’ve learned as it applies to photography.
For the more official word, check out these great documents by the Copyright Council of Australia;
These days, everyone is a photographer. Many people are creating images on a daily basis. Lots of those are going to be uploaded onto social media by the photographer themselves, or by someone the photographer has shared the image with.
For those of you who have wasted a year and a half of your lives reading the T&C for each of the social media platforms you use, you’ll already know that by uploading images onto facebook, or Instagram or whatever flavour you are consumed by, that you’re agreeing that you have the right to upload the image and you are granting that platform the right to do an outrageous number of things with it.
However the photographer retains moral rights to their images. Just like you would reference a quote or a book in an essay, you should be referencing the creator of an image that you use.
Moral rights include ;
- the right to be attributed as the creator of an image
- The right to take action if someone else pretends they took the photo
- the right to take action if someone has mucked around with an image in a way that is going to cause the photographer grief (see the technical wording stuff in the act – caused me grief won’t stand up in court and I’m not a lawyer)
If you’re sharing an image and you’re not the photographer, ask permission first and make sure you include a photo credit for the photographer. Better yet, include a link back to their page or web site. If an image has a watermark, don’t remove it by cropping or cloning. That’s just not cool.
What is a Copyright?
This is pretty complicated, so hold onto your hats. Copyright is…. The Right to Copy.
Well, ok, it is also the right to publish and communicate an image, but it isn’t much more complicated than that. The copyright owner can license others to use those images in a variety of ways as well, and some of those ways are granted in written and implied agreements.
Keep in mind copyright applies to digital as well as printed copies of an image.
Did you know that copyright applies automatically? An image doesn’t need to have a big © or a watermark on it to be covered by Copyright. In Australia the moment a photograph is taken, it is protected by copyright.
So who owns Copyright?
In most cases the photographer will be the first copyright owner. Even if they took it on your camera.
There are, of course, exceptions to this. If someone takes pictures as part of their employment, their employer will be the default copyright owner. If someone takes pictures on behalf of the government, the government owns your soul and rights to your firstborn. Well, not really, but they will normally own the copyright to the pictures.
If you agree to pay a photographer to take a family portrait or a wedding and there is not a contract stating that the photographer will own copyright, then the person who commissioned the pictures will own the copyright. ( *** there usually is – almost always – a contract, and it usually – almost always – says the photographer or studio will own the copyright. If there isn’t such a contract and you’re dealing with a professional – doing this for a living – photographer, you’re usually – almost always – paying extra for the additional rights).
In all cases an agreement between the photographer and the person commissioning the photographs will override default provisions. Regardless whether you’re a photographer, model, or someone paying for photographic services it is in your best interests to get it in writing, and understand what you are signing. Make sure everyone has a common agreement on who gets to do what with the pictures, where and for how long.
Copyright can be transferred by contract, or inherited. I know my nieces and nephews are going to be thrilled when they discover they will inherit the rights to all my award winning images. Well, a girl can dream.
If I don’t own copyright, what CAN I do with pictures?
People other than the copyright owner will often have rights to use the images in specific ways as part of a written or implied agreement.
This might include specific rights to publish pictures on social media, on web sites, in magazines or annual reports for example. This will usually include where, when and for how long images can be used. It is best for everyone to have this in writing. Did I say that already?
When in doubt, seek permission. And get permission in writing. Sorry, broken record I know.
How long does Copyright last?
- Images taken after 1955 are covered by copyright for 70 years after the death of the creator
- Copyright has expired for all photographs taken before 1955
- A photographer has Moral Rights even if they don’t own the copyright to their images
Right at the beginning of this, if you can remember back that far, I mentioned that my niece was using images for a school assignment. And that’s covered under the act.
If she’d included the attribution for the pictures she would have got an A+ from me. Other fair sue provisions cover use for ;
- research or study
- criticism or review
- parody or satire (my favourite)
- reporting news
- professional advice by lawyers etc
- disabled access
What about me? – Property and Talent releases
That’s all great for the photographer, but what about the person in the picture? Being the subject of a picture doesn’t give you special rights to the photograph, but you have some control over how that image is used. In Australia, at present, a photographer does not need to ask permissions to take your picture in a public place. These rules vary in different parts of the world though, so check your facts if you’re a traveler.
But if the photographer wishes to use the image to advertise or sell something, or license it for someone else to use to advertise or sell something they will need a model release from you to do so. EXCEPT if the image is going too be used for editorial purposes. There’s always a kicker.
Skip to the important stuff
- If you didn’t take the picture, ask permission before you print or upload it.
- If you do upload it anywhere (with permission), make sure you include an attribution to the photographer.
- If you’re commissioning anyone to take pictures for you, get a contract in writing, read and understand it, and when in doubt ask.