A dispute about who took a photograph, or who is the owner of copyright in a photograph, may need to be resolved by a court if the parties cannot agree. A court considers all the relevant evidence presented to it. The most important evidence is usually the oral evidence of the parties and of relevant witnesses. Other evidence may include a copy of an agreement between a photographer and his or her client, negatives and proof sheets. A copyright notice on the photograph may be relevant to the question of ownership, but it is not conclusive.

Such cases are rare; someone else claiming to own copyright without any basis, generally runs large financial risks in bringing such a case.

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No. Copyright protects the expression or form that the ideas take. The idea of photographing the Sydney Opera House at dawn, for example, is not protected. A person who photographs that scene can take action against others reproducing his or her photographs, but cannot prevent others from taking their own shot of that scene.

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The typesetting and typographical arrangement of an entire book, brochure or magazine will be protected as a “published edition”. This is a narrow and short copyright (only lasting for 25 years), owned by the publisher.

It is not clear, however, whether the layout for a specific publication – or a general template for a layout – may also be protected as an “artistic work”. We are not aware of any Australian cases on this, and there are conflicting British cases. If a layout or template were protected, the first owner of this copyright would usually not be the publisher, but the relevant graphic artist or his or her employer.

Generally, a claim that a particular layout is protected by copyright as an artistic work is likely to have a greater chance of success in relation to a more elaborate layout (such as in a magazine) than in relation to the typical layout of a book. As always, the best way to deal with any possible conflicts over the downstream use of what you create for clients is to make sure your client agreement specifically addresses who will own rights, and what each party’s entitlements will be in relation to a layout or template.

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If you have made a formal agreement with the client, you should first check this agreement. If there is no formal agreement, you will have to look at the general rules.

If the photograph was taken before 30 July 1998, unless you and the client have agreed that you will own copyright, the client will own copyright if he or she agreed to pay for the taking of the photograph, even if the payment has not actually been made. If the photograph was taken after 29 July 1998, you will own copyright, unless the photograph was commissioned for a private or domestic purpose and there was no agreement about ownership of copyright, in which case the client will own copyright.

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Posters and brochures may contain more than one copyright work – for example, each photograph and illustration may be a separate copyright work, and the text may be another copyright work. The works may have different authors, but in most cases the authors will not be identifiable. If the work was first published anonymously and the identity of the author cannot be ascertained on reasonable inquiry, then the period of copyright protection is measured from the year of publication (rather than the year of the author's death).

Copyright in a poster or brochure has expired if:

• it was published before 1955, AND

• any author (other than a photographer) whose identity can be ascertained died before 1955.

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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.

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