US Introduces New Copyright Exemptions
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Q&As from photographers' clients
This information is for general guidance only; it is not legal advice.
First read:
copyright basics webpage
- Photographs: copying photos you paid for information sheet
| question | date | answer | more | QA |
|---|---|---|---|---|
| I have paid for a photograph—am I entitled to the negative? | 20/12/2006 | 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. | QA0302 | |
| 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? | 20/12/2006 | 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. You may also get extra copies made if the copyright in the photograph has expired. If you do not the copyright, but you own the photograph, you may be entitled to make a copy under the "format-shift" exception that allows you to make a copy of a photograph you own, in a different format, for private use. You may also be entitled to make a copy in a different hardcopy form than the form of the photograph you own, but it is not clear what this means. It also seems that you can made a hardcopy copy from the electronic copy you have made – for example, you can scan the original, and then print a copy from the electronic file. Note that you can lend the copies you make to members of your family or household, but you are not entitled to given them, or the original photograph, to anyone. If the copyright has expired and you want to make more than one copy in the same form, or you want to do something with the copies that is not allowed by the private use exception (such as give them away), you 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). | QA0303 | |
| Does the photographer have the right to charge for subsequent prints made from the negatives? | 20/12/2006 | 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. | QA0304 | |
| May the photographer copy my photograph without my permission? | 20/12/2006 | 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. | QA0305 | |
| Who owns copyright in school photographs? | 20/12/2006 | As noted above, who owns copyright in a photograph is usually determined by the agreement between the photographer and the client. If the issue is not covered by an agreement, then copyright is usually owned by the photographer unless the photograph was taken in return for a fee or other “valuable consideration”. If the photograph was commissioned before 30 July 1998, the client owns copyright only if the photograph was taken for a “private or domestic purpose”. If the photograph was taken for a student to take home, it is likely it was taken for a “private or domestic purpose”. If a photographer takes photographs in a school “on spec”, without an agreed payment but in the expectation that students will buy prints, it is likely that copyright is owned by the photographer. | QA03026 | |
| How long does copyright in a photograph last? | 20/12/2006 | If the photograph was taken before 1955, the copyright has expired. If the photograph was taken after 1954, copyright usually lasts for 70 years from the year the photographer died if the photograph was published in the photographer’s lifetime. If the photograph was first published anonymously or under a pseudonym, however, copyright lasts for 70 years from the year of first publication. If the photograph was first published after the photographer’s death, copyright lasts for 70 years from the year of publication. If the photograph has never been published, copyright can last indefinitely | QA0307 | |
| The shop where I want to have some photos copied has asked me to sign a form. What is this form for? | 20/12/2006 | Many copy shops are wary about copying photographs for clients, particularly if it looks like the photographs were taken by a professional. To protect themselves, copy shops will often ask customers to “warrant” (that is, legally promise) that the copy shop will not infringe copyright by copying the photo. Generally, this warranty will be backed up by an indemnity. This means that if the copy shop infringes copyright, it can take action against you for any damage it suffers as a result of the infringement. If you sign such a form, you may be liable to pay for these losses, which can include the cost of legal advice. Generally, therefore, you should not sign any form (and not ask for a copy centre to copy photos for you) unless: • you own copyright in the photos; or • you have been given permission by the copyright owner to have the copies made; or • copyright in the photos has expired. Forms will differ from shop to shop, and if you are uncertain what a form means, or what you are being asked to warrant, you should ask to have it explained to you. The new private use exception only applies to copies you make of photographs you own. It does not apply to copies made for you by someone else. | QA0308 |