Who owns a photograph in Australia?

Copyright in a photograph is a property right, separate from ownership of the physical print or the file on the camera. Two different people can hold each. The Copyright Act 1968 (Cth) governs how the property right arises, who first owns it, and how it can be moved.

The default rule

Under section 35(2) of the Copyright Act 1968 (Cth), the author of an original artistic work is the first owner of the copyright. A photograph counts as an artistic work under section 10. So if you press the shutter, you are the author, and you start out owning the copyright in the image.

When the default does not apply

You took the photo as part of your job

Section 35(6) of the Act says that if a photograph is taken by an employee under a contract of service in the course of their employment, copyright belongs to the employer unless the contract says otherwise.

You were commissioned to take it

Section 35(5) sets out a separate rule for photographs taken on commission for private or domestic purposes (such as a family or wedding portrait). Where copyright would otherwise vest in the photographer, the person who commissioned the photograph is the owner for those particular purposes, unless the parties have agreed otherwise in writing. This rule is narrower than many people assume. It does not transfer copyright wholesale, and commercial commissions are not covered.

Photos taken before 30 July 1998

The default ownership rules were rewritten in 1998. For photographs taken on commission before that date, the commissioning party was generally the first owner unless agreed otherwise. The transitional provisions matter if you are working with an archive.

How long copyright lasts

Section 33 of the Act gives copyright in artistic works (including photographs) the life of the author plus 70 years after their death. Photographs taken before 1955 are now public domain in Australia under the older 50-year term, with subsequent changes by the US Free Trade Agreement Implementation Act 2004.

Moral rights

Separately from copyright, the Copyright Amendment (Moral Rights) Act 2000 gave authors of works (including photographs) the right to be attributed and the right of integrity. The right of integrity is the right not to have their work treated in a derogatory way. Moral rights cannot be assigned, but they can be waived in writing.