Generally, no. Although a building is protected by copyright, a special exception in the Copyright Act allows buildings to be photographed without permission. Be aware though, that the owner of a property may impose restrictions regarding entry onto the property. It may sometimes be the case, as with photographs of people, that certain unauthorised uses of a photograph of a particular building may raise issues under other laws, such as trade practices legislation.
The generally accepted interpretation of the relevant provision in the Copyright Act is that you may photograph a “sculpture or work of artistic craftsmanship” which is publicly displayed “other than temporarily” without permission. There is, however, a technical argument that neither underlying works in such sculptures and craft works nor pre-existing design drawings are covered under that provision, and that permission is still required for the indirect reproduction of these works in a photograph of the sculpture or craft work. We are not aware of any cases in which this argument has been raised in court.
You will generally need permission to photograph other public art, such as murals.
The Myer Report of Contemporary Visual Arts and Craft (2002) recommended repealing provisions which deal with copyright in sculptures and craft works on public display.
Photographers have moral rights over photographs they have taken. Generally anyone reproducing a photograph that is protected by copyright has an obligation to attribute the photographer as well as to get permission from the copyright owner. For further information, see our information sheet Moral rights.
If the photograph was taken before 30 July 1998, and no agreement about copyright ownership has been made, the client owns copyright, even if the payment has not actually been made.
If the photograph was taken on or after 30 July 1998, the photographer generally owns copyright unless there is an agreement to the contrary. However, if the photograph was commissioned for a private or domestic purpose, the client owns copyright unless there was an agreement to the contrary.
If the client owns the copyright, the photographer is entitled to recover the debt, but not to prevent the client using the photograph for the purposes for which it was taken.
Your solicitor should be able to draft a contract in such a way as to give you rights under copyright law as well as under the contract. Such a contract may assist you in the event that a client uses a photograph before paying you.
Ownership of a physical negative, transparency or CD-ROM is determined by general property law and not copyright law. The owner of a negative is usually the person who paid for the film on which the negative image appears. Ownership of copyright in the photographs is separate from the ownership of physical items, such as the prints, negatives or digital files. Your agreement with the client should cover these issues.
If the client owns copyright in the photographs, he or she may make copies from prints in his or her possession. A photographer may own negatives but this does not entitle him or her to make further prints without the copyright owner’s consent.
In some situations a person who does not own prints or film may have possession of them. For example, a photographer may charge a client for materials but retain possession of the negatives. In this situation, the client may own the negatives, and the photographer may have a duty to keep the negatives safe and return them if requested by the client.
Generally, no. Although the copyright owner has the exclusive right to make reproductions of the photograph, he or she may not be able to exercise these rights in practice if he or she does not have access. The Act does not require a person who controls the physical item to give access to the copyright owner. However, a photographer may have an express or implied contractual obligation to give the client access to the negatives or digital file.