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Today is Copyright Law Day. Not the most exciting of topics to start the New Year off with (except for copyright lawyers, I guess…), but still a pretty critical topic to ensure that everyone gets his or her dues, that fair remains fair and that order prevails in the world of intellectual property.

As I’ve often mentioned, many great inventors lost out on great amounts of money simply because they lacked the necessary patenting and copyright savvy to ensure that they kept ownership of their innovations. And similarly other inventors, those who did manage to patent and copyright their work, gained wealth beyond their wildest dreams.

Copyright law - an important subject to keep in mind when creating art for commercial purposes.(© All Rights Reserved)

Copyright law – an important subject to keep in mind when creating art for commercial purposes.
(© All Rights Reserved)

Of course in my line of work, being a photographer, photographic copyright law is particularly important.

When looking at New Zealand Copyright Law as it applies to photography, the situation is reasonably simple. In terms of ownership, the default scenario is that the person who takes the photo is the first owner of copyright of the material. However, there are two important exceptions:

  1. Employees – if a photograph is taken by a photographer in the course of his/her employment, the employer is the first owner of copyright, unless there is agreement to the contrary.
  2. Commissioned material – if a client commissions and pays for a photograph to be taken, s/he become the first owner of copyright unless there is agreement to the contrary.

Point (2) above, known as the ‘commissioning rule’, has long been a matter of debate in copyright law worldwide, and is currently under review in New Zealand (see “The Commissioning Rule, Contracts and the Copyright Act 1994: A Discussion Paper”, at http://www.med.govt.nz).

In a number of other countries, including the UK and Ireland, the commisioning rule has been removed from copyright law as it pertains to creative artifacts. Australia and Canada are also moving towards the situation where copyright is retained by the photographer, independent of commissioning.

Importantly, Copyright Law can be overridden by an additional contract/agreement between the photographer and client. As stated in the law, the employee rule and commissioning rule apply ‘unless there is agreement to the contrary’. So if you’re commissioned for a job, but it’s going to take sufficient intellectual and creative input from you as a photographer, that you would want to keep copyright of the image(s), you can set up an agreement with the commissioning party granting you copyright.

Whether there is a specific agreement in place regarding copyright and the allowed use of a photograph or not, an additional factor that comes into play in creative works is the ‘moral right’ of the creator. Artists are, by law, granted certain moral rights pertaining to their creations. Specifically, the artist has the right to be identified as the author of a work when it is published/displayed, and has the right to object to derogatory treatment of a work. In the photographer/client agreement, moral rights may also be defined in more detail, and penalties specified for cases where the moral rights of the photographer are not upheld.

Whichever option one goes for, it is important to remember that copyright and ownership of a photograph is an important matter, that needs to be addressed when contracting a photographer. Whether the photographer or the client retains ownership of the photo, some agreement should be in place to (1) give both parties sufficient rights to the image, and (2) protect both parties from misuse of the image by the other party.

So here’s to a great 2013 – may your creativity be plentiful, and may you reap the just rewards for everything you do! 🙂

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