The Thorny Issue of Copyright *

Over the last fortnight I have been involved in two separate discussions about copyright issues with regards to photographs. The second occasion was prompted by the following situation:

A semi-professional photographer who specialised in new born images took some photos of a baby and was paid for the work. The mother signed the standard contract that the photographer insisted on, that stated that the photos were not be used for commercial purpose. It provided that they could be displayed on Facebook, and tagged. There was, however, no mention in the contract about who owned the copyright in the image.

The photographer was therefore surprised when a couple of weeks later they happened to receive a flyer in the mail from a local real estate agent that contained one of the pictures in it. It was used in story about the real estate agents current activities as it turned out that she was the grandmother of the baby.

The photographer contacted the real estate agent looking for credit and explaining the situation of copyright. The agent basically told her to “take a jump” but admitted in the process that she had actually grab the photo off Facebook and then edited it to remove the watermark in the corner.

So what could she do. Despite several people saying sue the pants of the real estate agent, the reality is that there is probably nothing the photographer could do, because under current New Zealand she didn’t actually own the copyright in the image that was used, and as the grandmother never signed the original contract there was no breach there.

Copyright is an extremely complicated area of law. It is also often misunderstood.

Copyright is a set of rights that exist under law to protect the interests of people who create something. It has to apply to a physical object though and not an idea, and must apply to an original work.

Under New Zealand law copyright is automatically granted to the person who creates the work and exists from the moment that the piece is created and expires 50 years after the entity who owns the copyright ceases to exist. Unlike some other countries, in New Zealand there is no requirement to register the copyright, therefore putting the ©symbol on a piece of work is largely irrelevant.

Based on the statements above you would therefore say that the photographer owned the copyright and therefore the Agent had breached copyright.

The problem is that copyright is not that simple, and the major issue for photographers particularly is in a little clause about commissioning. Put simply commissioning is when someone else asks you to take a picture. While it would be usual for the photographer to receive payment in some way, that is not actually a requirement under the law.

The default position under the Copyright Act is that if you are commissioned to take a photo then the copyright created actually belongs to the person who commissioned the work. This can be contracted out of, and this is what most professional photographers will do. They have a clause in their contracts that state that they retain copyright in the image.

So back to the original situation. With no copyright clause in the contract, it was the mother who actually owned the copyright in the images. She posted them on Facebook and probably allowed the grandmother to download them. There is no contract breach and no copyright breach.

The area of commissioning was going to be looked at by the Labour government in 2008 and they had an Amendment Bill in train. They lost the Election and the National Government elected not to take the Bill further. It is still being looked at.

So in summary

You own the copyright in an image you take, unless someone asks you to take it in which case you need to get them to sign something stating that you retain copyright.

* Please note that this article is based on my personal understanding of law, and talking with professional photographers. I have not consulted a lawyer (as they cost too much) and therefore the advise contained should only be taken as a guide.

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