Hey guys, I just wanted to add something that I discovered about Australian
Copyright law today. It is from the Copyright Council Website, but it has
frames and is a pain to give a URL to so I will just paste some of it here.
What I have discovered is extremely worrying, particularly for me in my
small town. It is NOT standard practice in our town (or other similar towns
in the region), to ask clients to sign a contract or a model release, and I
have often heard complaints from many and bad reports about those
photographers who require it. However, after reading this info. I will be
requiring that anybody who "commissions" me to take their portrait or to
shoot their wedding etc. WILL have to sign a document of some description.
It will probably be something similar to the one that Tom R posted. But
anyways, this is what it says:
This first part is directed to the CLIENT in regards to pictures they have
purchased or commissioned:
"For photographs, the general rule is that the first owner of copyright in a
work is the photographer. However, if
you paid a photographer to take a photograph before 30 July 1998, you would
be the first owner of copyright,
unless you agreed otherwise with the photographer. It is not necessary that
such an agreement be in writing if it
was made before the photograph was taken. For photographs taken after 30
July 1998, the photographer is the first owner of copyright in commissioned
photographs. However, if you commissioned a photograph for a 'private or
domestic purpose' after that date, you would be the first owner of
copyright, unless you agreed otherwise with the photographer. 'Private or
domestic purpose' includes family portraits and wedding
photographs."
And this:
"If you are the owner of copyright in a photograph, then, generally, you are
the only person entitled to make
copies of the photograph - for example, by making new prints from a
negative, making colour photocopies or
scanning into computer memory. However, if, prior to the taking of the
photograph, you tell a photographer about
the purpose of the photograph, or if the purpose is understood from the
circumstances, then the photographer may be able to prevent you using the
photograph for other purposes. For example, if a photographer agrees to take
a
photograph for publication in a magazine, he or she may be entitled to
prevent the photograph being used on
posters even though the client is the owner of copyright.
I have paid for a photograph - am I entitled to the negative?
Ownership of a negative or transparency is determined by general property
law and not copyright law. The owner
of a negative will usually be the person who paid for the film on which the
negative image appears. If the
photographer is the owner of the negative, he or she is unlikely to be
obliged to give it to you, even if you are
the owner of copyright in the image. Again, you may need to check your
agreement with the photographer.
If you are the owner of copyright, you may make copies from prints in your
possession if you are unable to get
access to the negatives. On the other hand, a photographer may own the
negative but is not thereby entitled to
make prints for display in the studio or for any other purpose without your
consent.
In some situations a person may have possession of prints or film without
being the owner. For example, a
photographer may charge a client for materials but retain possession of the
negatives. In this situation, the
client may be the owner of the negatives, and the photographer may be a
"bailee" with a duty to keep the
client's property safe. The client may be entitled to request return of his
or her property at any time and the
photographer may be obliged to return it if requested.
How can I get extra copies where there is a copyright notice on the back of
the
photograph and the photographer has long since gone out of business?
If you own the copyright in the photograph, you may get copies made even if
a copyright notice with the
photographer's name is on the back of the photograph.
If you do not own the copyright, you will need permission from the copyright
owner. This may be an individual
photographer, or it may be a company. If an individual photographer is the
copyright owner, but no longer
operating the same business, you may be able to track him or her through a
professional organisation such as the
Australian Institute of Professional Photography. If copyright was owned by
a company, and the company has
gone out of business, you may be able to get information from the Australian
Securities and Investments
Commission about what happened to the company's assets (which include
copyrights).
Does the photographer have the right to charge for subsequent prints made
from the
negatives?
You will need to check your agreement with the photographer, and what the
photographer agreed to do in return
for the fee you paid. If the photographer agreed to take certain photographs
and supply you with one set of
prints, then the photographer is unlikely to be obliged to give you further
prints for free.
May the photographer copy my photograph without my permission?
If you own the copyright in the photograph, the photographer generally needs
your permission to make a copy of
it. You may need to check your agreement with the photographer, and whether
you gave any such permission in
that agreement.
If the photographer owns the copyright, then he or she may make a copy of
the photograph. Again, check your
agreement with the photographer in relation to this.
Who owns copyright in school photographs?
As noted above, copyright in a photograph is generally owned by the
photographer unless the photograph was
taken in return for a fee or other "valuable consideration" (for
commissioned photographs taken after 30 July
1998, the client owns copyright only if it is taken for a "private or
domestic purpose". A school photograph is
likely to fall within the definition of "private or domestic purpose").
If a photographer takes photographs in a school without an agreed payment
but in the expectation that students
will buy prints, then it is likely that copyright is owned by the
photographer.
On the other hand, if the photographer takes photographs in return for a fee
the school has agreed to pay, then it
is likely that the school owns the copyright (unless there has been some
other agreement about copyright).
How long does copyright in a photograph last?
Copyright in a photograph taken before 1 May 1969 lasts from the time it is
taken until 50 years after the year it
was taken. Thus, copyrights in photographs taken before 1 January 1949 have
expired."
Pretty scary stuff eh? It is generally assumed (and I have even been told
this by the one hour lab guy I refer to some times) around here that if the
photographer has negs, than he holds copyright. Not so it seems. This is
particularly important to me, being involved in portraiture photography in
what is heading to be a full-time venture (I already have 20+ bookings from
the Day Care Centre thing, but I'll update that in a separate thread).
Particularly scary is the bit that says that even if you have "copyright"
marked on your work, you may not be the actual copyright owner.
I'll post some more in a separate email in a sec, this one is getting rather
huge....
fairy.
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