Copyright

March 23, 2014

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 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.

General Information for Photography Licenses

March 19, 2014

Types of Image Licenses

Exclusive Licence

An Exclusive Licence is a licence which is in writing and signed by the Copyright owner. An exclusive licensee has smiliar rights to the owner of copyright, and may take legal action for infringement by third paties.

Non-Exculsive Licence

A Non-exclusive 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 Licences

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 circumstances.

Standard Terms and conditions for assignment photography

1. Definitions

For the purpose of this agreement "the client " shall where the context so admits include their respective assignees, sublicencees and successors in title. "photographs" means all photographic material furnished by [Insert Name] whether transparencies, negatives, prints or any other type of physical or electronic material.

2. Copyright

The copyright in the photographs is owned by and retained by [Insert Name] at all times throughout the world. The Client agrees that [Insert Name] is the sole author of the photographs.

3. Licence to use

The Licence shall be for the territory time and use as agreed and shall come into effect from the date of payment of the relevant invoice(s). No use may be made of the photographs before payment in full of the relevant invoice(s) without [Insert Name] express permission in writing. The Licence only applies for the use as agreed and does not include any form of electronic or other storage. The Licence cannot be transferred without [Insert Name] express permission in writing.

4. Photographers promotional use

Where an exclusive licence is granted, [Insert Name] will at all times retain the right to use the photographs in any manner and in any part of the world for the purpose of advertising and promoting his work.

5. Ownership of materials

Title to all Photographs remains the property of [Insert Name]. When the Licence has expired the photographs will be returned to [Insert Name].

6. No Alteration

No alteration or manipulation of the image may be made with out the permission of [Insert Name]

7. Clients materials

The Client accepts full responsibility for any materials that they supply for use in the photographs and that the materials are adequately insured against loss, damage or liability.

8. Payment

Payment by the client will be required for the right to use the photographs as provided within 14 days of the issue of the relevant invoice. Late payment fees will become applicable for any unpaid money after that time. Where the work is estimated to exceed $5000.00 inc materials, payment of 30% of the estimated total will be paid before the work commences.

9. Indemnity
[Insert Name] shall not be liable for any legal action, claim or damages resulting from or arising out of the publication of the photographs or other use by the client. The client shall indemnify [Insert Name] against any claims and/or damages against him as a result of the clients use of the photographs.

10. Client Approval

If the client is not present during the actual photography sessions then [Insert Name] interpretation of the assignment will be accepted. Unless a rejection fee is agreed in advance then there is no right of rejection.

11. Cancellation and postponements

Once [Insert Name] has been commissioned, The Client is responsible for payment of all expenses incurred up to the time of cancellation and will be entitled to charge a fee for cancellation or postponement at his discretion.

12. Right to a credit

[Insert Name]'s name will be printed in reasonable proximity to all published reproductions of the photographs unless agreed otherwise prior to the work commencing.

13. Archiving

The photographs are an original work and [Insert Name] will not archive copies of the photographs unless specifically requested in writing prior to the work commencing. Each photograph is unique and does not have an exact duplicate and may be impossible to replace or recreate.

14. Client Confidentiality

[Insert Name] will keep confidential and will not disclose to any third parties or make use of material or information communicated to him in confidence for the purposes of the photography save as may be reasonably necessary to enable him to carry out the work.

15. Variation

These terms shall not be varied except by agreement in writing.

16. Applicable Law

This agreement is governed by the Laws of New South Wales.

If you require a PDF version of the Sample Image Licenses, Please contact me.

Sample Non-Exclusive License - Photographs

March 19, 2014

Non-Exclusive licence to use an image

(photography or videography)

1. Parties

[Insert name and address of person or company granting the rights (if it is a Company include the ACN / ABN)]

(the “Licensor”)

and

[Insert name and address of person or company being granted the rights]

(the “Licensee”)

2. Ownership of copyright

The Licensor is the owner of copyright in [identify the copyright material as clearly as possible - attach a copy where possible] (“the Work”).

3. Grant of rights

The Licensor grants the Licensee a non-exclusive licence to [insert details of what the licensee may do with the material (eg: reproduce it on t-shirts) and, if appropriate, how many copies may be made].

4. Licensee’s obligations

The non-exclusive licence granted in clause 3 is conditional upon the Licensee ensuring that:

a) the Work is reproduced in full without any alterations or additions;

b) the following attribution and copyright notice appears on all copies of the Work;

[insert example of how you would like the attribution and copyright notice to appear eg: “Work by Joe Brown. (COPYRIGHT SYMBOL) Joe Brown 1998”] ;

c) the Licensee pays the Licensor [insert details of payment eg: a lump sum or a percentage of the sale price of the item] ; and

d) insert any other special conditions.

5. Duration of licence

This licence will expire on [insert date].

6. Territory

This licence is limited to the territory of [insert territory (eg: Australia)].

7. Signature

[The agreement should be signed and dated by both parties].

Sample Assignment of Copyright - Photographs

March 19, 2014

DEED OF ASSIGNMENT OF COPYRIGHT (PHOTOGRAPHS)

BETWEEN

Company Pty Ltd ACN 111 222 333 (the “Assignor”)

AND

Other Company ACN111 222 444 (the “Assignee”)

DEED OF ASSIGNMENT OF COPYRIGHT (PHOTOGRAPH/S)

MADE THE _________________ DAY OF _____________________________ 20____ .

BETWEEN:

Company Pty Ltd ACN 111 222 333 of 1 Sydney Street Sydney 2000

(the “Assignor”)

AND:

Other Company ACN111 222 444 of 1 Brisbane Street Brisbane 7000

(the “Assignee”).

RECITALS:

A.The Assignor is the copyright owner of the Photograph/s described in the Schedule and the Assignor is able to assign the copyright free of all encumbrances and adverse interests.

B. The parties have agreed to enter into this Deed to assign the copyright in the Photograph/s to the Assignee on the terms and conditions set out in this Deed.

THE PARTIES AGREE AS FOLLOWS:

1. ASSIGNMENT

1.1The Assignor hereby assigns to the Assignee all of the Assignor’s right, title and interest in the Photograph/s including any copyrights throughout the world and the Assignee hereby accepts such assignment.

2. WARRANTIES

2.1 The Assignor warrants that:

(a) the Assignor is the sole and exclusive owner of the copyright in the Photograph/s;

(b) Copyright under the Copyright Act 1968 (Cth) as amended subsists in the Photograph/s;

(d) the Assignor has not previously assigned, licensed or granted any other right to any person to use the copyright or any part thereof in the Photograph/s;

(e) no third party is the owner of any moral rights under Part IX of the Copyright Act 1968 (Cth);

(f) this Deed is a valid assignment of all his/her/its right, title and interest in the Photograph/s and in the copyright in the Photograph/s.

3. UNDERTAKINGS

3.1 Each party agrees to make, do and execute all such other documents, acts, matters or things whatever which may be necessary or desirable to give full effect to the provisions of this Deed.

3.2 The Assignor will provide to the Assignee the Photograph/s in either digital or non-digital format in the manner set out in the attached Schedule either prior to or simultaneously with the execution of this Deed.

4. ACKNOWLEDGEMENTS

4.1 The Assignee represents to the Assignor that it/he/she has carried out due inquiries as to the copyright in the Photograph/s and the Assignee has satisfied itself/himself/ herself as to the suitability, fitness for purpose and utility of the copyright in the Photograph/s AND the Assignor gives no warranty and makes no representation in respect thereof and to the extent to which the law might imply any term as to suitability, fitness for purpose and utility THEN the parties expressly agree that all such implied terms are to the fullest extent permitted by law hereby excluded.

4.2 The Assignee acknowledges that it/he/she is not relying upon any representation, undertaking or other statement by the Assignor as to the content of the Photograph/s, how the Photograph/s can be used or as to any other feature of the Photograph/s AND has relied exclusively upon its/his/her own assessment as to suitability, fitness for purpose and utility of the Photograph/s.

5. MORAL RIGHTS

5.1 In relation to the Photograph/s, the Assignor reserves the right to make a moral rights claim pursuant to Part IX of the Copyright Act 1968 (Cth).

6. CONSIDERATION

6.1 The consideration for this assignment is the payment of Five Hundred Dollars ($500) by the Assignee to the Assignor made simultaneously with the exchange of signed counterparts of this Deed, the receipt of which is hereby acknowledged by the Assignor.

7. GST

7.1 Where this assignment constitutes a supply for the purposes of the Goods and Services Tax legislation in Australia, the Assignor will provide a tax invoice to the Assignee for the amount of the consideration referred to in Clause 5 plus GST and the Assignee will pay to the Assignor in addition to the consideration the said amount of GST.

SCHEDULE

Copyright Details:

in digital format minimum 300 dpi in TIFF/JPEG or EPS file on CD

EXECUTED AS A DEED on the date first mentioned.

SIGNED AS A DEED BY

Company Pty Ltd

ACN 111 222 333

pursuant to Section 127 of the Corporations Act 2001 (Cth) in the presence of:

Director

Print Name:

Signature of Witness

Print Name:

SIGNED AS A DEED BY

Other Company

ACN 111 222 444

pursuant to

Section 127 of the Corporations Act 2001 (Cth) in the presence of:

Director/Secretary

Print Name:

Director

Print Name:

Signature of Witness

Print Name:

Director/Secretary

Print Name: