Duration of Copyright:
Copyright in Photographs lasts for the lifetime of the Photographer plus 70 years beyond. For example, Henri CartierBresson passed away in 2004 then Copyright of his photographs will expire in the year of 2074. The Duration of copyright in original works was stipulated in the Copyright Act.
COPYRIGHT ACT 1968 - SECT 33
(2) Subject to this section, copyright that subsists in a literary, dramatic, musical or artistic work by virtue of this Part continues to subsist until the end of 70 years after the end of the calendar year in which the author of the work died.
If the works of the Photographer has not been published, then the copyright in the work lasts for 70 years after the work is first published:
(3) If, before the death of the author of a literary work (other than a computer program) or a dramatic or musical work:
(a) the work had not been published;...
the copyright in the work continues to subsist until the end of 70 years after the end of the calendar year in which the work is first published…
For unknown or anonymous Photographers, the duration of Copyright is also 70 years after which the work is first published:
SECT 34
Duration of copyright in anonymous and pseudonymous works
(1) Subject to subsection (2), if the first publication of a literary, dramatic, musical or artistic work is anonymous or pseudonymous, any copyright subsisting in the work by virtue of this Part continues to subsist until the end of the period of 70 years after the end of the calendar year in which the work was first published.
NB: Copyright of Photographs taken prior to 1st January 1955 has expired.
Copyright Protection
Copyright protects a range of artistic works, including photographs.
Copyright Protection is automatic and there are no procedural requirements or system of registration in Australia. Therefore, your photo is instantly protected by copyright from the moment it is captured. Australian Copyright owners are also protected in most other countries, as a result of International Treaties signed by Australia. For example, the Copyright Term stipulated in the Berne Convention stated that:
Article 7
(1)The term of protection granted by this Convention shall be the life of the author and fifty years after his death.
NB: The Copyright Notice is not required for protection in Australia or in most other countries.
Ownership of Copyright
The General Rule applies to the Copyright ownership is that the photographer is the owner of Copyright, unless subject to agreement to the contrary.
From a legal perspective, it is recommended to sign an agreement stating the ownership, whether written or partly written and partly oral. This agreement will act as a legally binding contract in the event of Copyright ownership dispute.
COPYRIGHT ACT 1968 - SECT 35
Ownership of copyright in original works
(2) Subject to this section, the author of a literary, dramatic, musical or artistic work is the owner of any copyright subsisting in the work by virtue of this Part….
Ownership of Copyright allows the Photographer to have the exclusive rights to:
- Reproduce the Photographs
- Publish the Photographs
- Share the Photographs to the Public
Copyright owners also can assign (sell for commercial profits) or license (grant permission for others to use) their photos with/without terms and conditions.
Restrictions of Copyright Use in Different Scenarios
- Photographs taken in a Commonwealth Reserve such as National Parks require a permit and subject to certain conditions for any commercial purposes. (The Environment Protection and Biodiversity Conservation Regulations 2000 (Cth))
- Photographs taken on the Sydney Harbour Areas such as Darling Harbour or Circular Quay are subject to regulations for commercial uses. (Sydney Harbour Foreshore Authority Regulations 2011 (NSW))
- Photographs taken in the course of Employment are owned by the employer unless there was an agreement made prior. For Photos taken by employees of newspaper and magazine publishers are subject to rules for different time period when the photo was taken:
- Before 1 May 1969, the publisher owns all the Copyrights.
- On or After 1 May 1969 & Before 30 July 1998, the publisher owns the rights of publication and broadcasting and the photographer owns all other rights.
- On or After 30 July 1998, the photographer owns the rights to photocopy or include in books but the publisher owns all other rights.
For Photographs taken for the Government, the government owns the Copyright in the photos created or published unless there is an agreement to the contrary.
For Commissioned Photographs, the general rules on ownership of copyright for paid Photographers that are for photos taken:
- Before 1 May 1969, the person paid the photographer has the ownership.
- On or After 1 May 1969 & Before 30 July 1998, the owner of copyright is the commissioning client unless otherwise agreed.
- On or After 30 July 1998, for ‘domestic or private purposes’ the ownership belongs to the client. For any other purposes, the Photographer owns the Copyright of the photos.
Legal Protection for Copyright Infringement
The General Rule applicable to the Infringement of Copyright is when dealings with Photograph/s that are intrusive to the exclusive rights of the Copyright owner without the owner’s permission.
COPYRIGHT ACT 1968 - SECT 36
Infringement by doing acts comprised in the copyright
(1) Subject to this Act, the copyright in a literary, dramatic, musical or artistic work is infringed by a person who, not being the owner of the copyright, and without the licence of the owner of the copyright, does in Australia, or authorizes the doing in Australia of, any act comprised in the copyright.
Rule in Application:
It will be an infringement if someone uses a substantial part of Copyright material without the permission of the copyright owner. “Substantial Part” is any important, distinctive or essential part of the original material, not necessarily a large part.
Coincidental similarity does not constitute infringe.
Steps to be take when by the Copyright Owner when there is an infringement:
1. Legal Advice – It is recommended to seek legal advice before deciding whether your copyright has been infringed. Advice in relation whether the infringement is “substantial” or there are any special exceptions before taking legal action.
2. Objectives –
The Copyright Owner should decide how the matter will be resolved and what demands you are entitled to, which can include:
- Injunction: Infringement Stop
- Delivery or Disposal of the Infringement
- Compensation for the Infringement
3. Contact the Infringer Directly, if it doesn’t work then;
4. Letter of Demand, it is worth considering getting a lawyer to draft this letter with more legal enforceability.
5. Court Action, this can act as the last legal resort after the Letter of Demand is not responded. The Federal Court of Australia, the Federal Magistrates Court and State and Territory courts all have jurisdiction to hear copyright infringement matters. (Please check the relevant Court Procedures and referrals for formal alternative dispute resolution procedures such as mediation, conciliation or arbitration for their respective websites)
- Statutory Limit: Within 6 years for court action for Copyright Infringement.
- The owner or owners of Copyright may proceed with Court action.
Remedies
Civil Remedies:
Civil remedies are available for infringement includes damages or an account for profits. Damages are a monetary sum paid to compensate for the infringement and account of profits is the profit made by selling infringements copies.
Criminal Penalties:
Infringement can be a criminal offence and impose criminal penalties such as fines and imprisonment. This is for a larger degree of infringement usually at the commercial scale.
Defences
There are some exceptions or defences, which include:
- Fair dealing for the purpose of criticism or review, research or reporting.
- Special provisions for copying by libraries, educational institutions and governments.
Legal Actions for the Person in the Photographs
Unauthorised Use of Photographs
The areas of law in Australia that may assist the Photographer to start legal action and cease the unauthorised use of his/her Photographs are:
- Defamation
- The Trade Practice Act
- Passing Off
Defamation
Defamation is legally defined as the action of damaging a person’s reputation, which decreases the respect, regard or confidence in that person. Publish or communicate photographs without consent does not necessarily constitute defamation as it has to be with a false intention. The unauthorised use of the photographs would need to either lower the public’s estimation of the person, expose the person to hatred, contempt or ridicule and induces disparaging, hostile or disagreeable opinions/feelings against the person.
The Trade Practices Act
Under the relevant sections of the Trade Practices Act (Commonwealth), it prohibits commercial conduct with misleading or deceptive purposes. To cease the unauthorised use of photographs under the TPA, it requires providing the evidence that the photograph is misleading or false representing.
TRADE PRACTICES ACT 1974 No. 51, 1974
SECT 52: Misleading or deceptive conduct.
52. (1) A corporation shall not, in trade or commerce, engage in conduct that
is misleading or deceptive.
(2) Nothing in the succeeding provisions of this Division shall be taken as
limiting by implication the generality of sub-section (1).
SECT 53: False representations.
53. A corporation shall not, in trade or commerce, in connexion with the
supply or possible supply of goods or services or in connexion with the
promotion by any means of the supply or use of goods or services-
(a) falsely represent that goods or services are of a particular standard,
quality or grade, or that goods are of a particular style or model;
(b) falsely represent that goods are new;
(c) represent that goods or services have sponsorship, approval,
performance characteristics, accessories, uses or benefits they do not
have;
(d) represent that the corporation has a sponsorship, approval or
affiliation it does not have;
(e) make false or misleading statements concerning the existence of, or
amounts of, price reductions;
(f) make false or misleading statements concerning the need for any goods,
services, replacements or repairs; or
(g) make false or misleading statements concerning the existence or effect
of any warranty or guarantee.
Passing off
The law of passing off in Torts when there is a misrepresentation of a person that is in fact someone else’s. It is designed to protect the reputation of a person/business from misrepresentation. To succeed in an action for passing off, the plaintiff must prove misrepresentation made was intended to damage the reputation and caused actual harm to the person/business.There are some limitations to the law of Passing off when applying to individuals, but as long as the evidence is provided establishing the intention and actual harm occurred due to the misrepresentation, then the law of passing off applies.
Moral Rights
Moral Rights are personal legal rights belonging to the owner of Copyright works and cannot be transferred, assigned or sold. Moral Rights are separate from Copyright as Moral rights impose certain obligations on people who use a Copyright Work.
Moral Rights are defined in the Copyright Act as:
"moral right" means:
(a) in relation to an author:
(i) a right of attribution of authorship; or
(ii) a right not to have authorship falsely attributed; or
(iii) a right of integrity of authorship; and
Only Individuals have Moral Rights:
COPYRIGHT ACT 1968 - SECT 190
Moral rights conferred on individuals
Only individuals have moral rights.
Moral Rights belong to individual creators and they have the right:
- To be attributed/credited for their work;
- Not to have their work falsely attributed; and
- Not to have their work treated in a derogatory way.
Duration of Moral Rights
Moral Rights lasts the same period as Copyrights, which is lifetime plus 70 years.
- Right of Attribution
Creators have their right to be attributed when their work is reproduced, published, exhibited, communicated or adapted.
- Right of False Attribution
Creators have the right not to have the authorship of their works falsely attributed.
- Right of Integrity
Creators have the right to not have his/her work subjected to derogatory treatment, which means any action prejudices the creator’s honour or reputation.
Exceptions:
There are two cases that do not contravene the moral rights:
- Consent
The Copyright Act sets out several different regimes for providing consent to infringements of moral rights.
Subdivision B--Infringement of moral rights of performers
195AXA. Infringement of right of attribution of performership
195AXB. Infringement of right not to have performership falsely attributed
195AXC. Infringement of right of integrity of performership
195AXD. No infringement of right of attribution of performership if it was reasonable not to identify the performer
195AXE. No infringement of right of integrity of performership if derogatory treatment or other action was reasonable
195AXF. Infringement by importation for sale or other dealing
195AXG. Infringement by sale and other dealings
195AXH. Matters to be taken into account
195AXI. Communication by use of certain facilities
195AXJ. Performer's consent to act or omission
195AXK. Consent invalidated by duress or false or misleading statements
195AXL. Acts or omissions outside Australia
2. Reasonableness
If reasonable course of action has taken in the circumstances that does not infringe the creator’s rights, a number of factors are to be considered: the nature of work, the purpose, manner and context, industry practice, course of employment/contract or if there are different views from multiple authors.
SAMPLE LETTERS OF DEMAND
The following Samples Letters of Demand have been included from the ArtsLaw Information Sheet and they are for the sole purpose of legal reference only, please contact the solicitor to draft a formal letter of demand or proceed with relevant court proceedings in cases of serious breach.
- Moral rights infringement - Letter of Demand
- Copyright Infringement - Letter of Demand
- Copyright and Moral Right Infringement by Media - Letter of Demand (Visual Arts & Photos)
You should modify these Sample Letters of Demand to suit individual needs, please contact me for a PDF version of the above Sample Letters of Demand with Instructions.
SAMPLE IMAGE LICENSES
Image License
Exclusive License
An Exclusive License is a license which is in writing and signed by the Copyright owner. An exclusive licensee has similar rights to the owner of copyright, and may take legal action for infringement by third parties.
Non-Exclusive License
A Nonexclusive license offers the rights for reproduction or illustration of your work but at the same time, it also maintained the same rights for yourself.
Implied License
Permission may be implied from the circumstances. However, it can be difficult to assess whether a license is implied or not, as it will always depend on all the relevant circumstances.
The following Samples Image Licenses are for the sole purpose of legal reference only, please contact lawyer to draft a formal image agreement.
- Deed of Assignment of Copyright
- Non-Exclusive Image License
You should modify these Sample Image Licenses to suit individual needs, please contact me for a PDF version of the above Sample Image License.