Who owns copyright of an image?

August 08, 2020  •  Leave a Comment
Desert Highways (record label in Melbourne) and Wall Of Sound. Thanks to them I got to photograph some of my fav bands but with working for publications comes certain copyright laws.

If you work for a newspaper/magazine/publication then photos taken before 1st May 1969 are owned by the publisher. Photos taken between 1st May 1969 - 30th July 1998 the publishers own the rights for newspaper and magazine publication and the photographer owns all other rights including the right to publish photos on the internet or in a book. From 30th July 1998 the laws changed again so photographers have the right to photocopy photo or include them in books and publishers own all other rights to the image. If you're a Freelance photographer though these rules don't apply. Freelance photographers fall under the general rule of "the person who took the photo owns copyright". HOWEVER - to make it more complicated, when you start photographing the big touring acts they have contracts with the can and can-not list but they all say THEY own the copyright of our images. I'm not even sure if this is even really legal but given how over-saturated music photography actually is thanks to digital photography and there being so many music news outlets on the internet, good luck to anyone monitoring photo usage. A good example here was the AFI photography contract. It stated we could only shoot the band on stage and no crowd photos. That seemed really strange to me because AFI are all about their fans. I followed the guidelines though, did my 3 songs in the pit then stood by the side because that's the 2nd best seat in the house. Another photographer shot from the back of the room and got some cool shots with the crowd and band - which AFI later shared on instagram. I actually wonder if bands even know what contracts are going out in their name. 

COMMISSIONED PHOTOS
aka you hired a photographer to take some family photos, maybe some pet photos, maybe your wedding. If it's domestic in nature it goes here. 

Up until July 30th 1998 the general rule was the person who hired the photographer was the copyright owner of the photos taken unless agreed otherwise. After this date the rules changed depending on the purpose of the photos: if it's just for domestic purposes (family photos) the client owns the copyright of the photos, if the photos being taken are for commercial purposes then the photographer is the first owner of copyright. In these instances though it all depends on what has been agreed upon at the time of organising the photo session. Many photographers use contracts which states they own copyright of the images no matter if it's a commercial shoot, family portraits or a wedding. This allows a photographer to then use photographs on their websites, photography competitions or in their advertising.

Being the copyright owner means you have the right to reproduce a photo, make copies, publish it, put it on a website. While working at Camera House though, this became a huge problem whenever those kiddy photography companies had been through with their free photoshoots offers. Parents would come in with their token print and want us to scan and print copies. So if I wasn't already knowledgeable about copyright thanks to TAFE, I definitely would have after working there because I had to give them the copyright law talk every other month. Companies like this either make you sign something or the back of the photo states it's a professional image. Buying a print doesn't give you ownership of an image. If we were to scan and print the photo, the store would have copped a hefty fine and it can include jail time. It was always super fun dealing with hostile parents after telling them this. I'm not doing jail time just because you don't want to buy a 2nd print or didn't read the fine print. 

Lastly..all those arty TFP photo shoots I do: I own the photos. I like to feel there's a mutual understanding among us though (because I got lazy with contracts) that everyone is free to share photos online but we all credit each other but don't go getting it published somewhere without everyone's permission. This is also why I work with the same 3 models. 

Owners of copyright have the exclusive rights of reproducing their work, posting it online, making photo books and they can sell their images. Copyright owners can assign (sell) or licence (permit others to use) their rights with or without limitations for a fee. An example for limitations: a client emails me wanting to use one of my photos commercially. I can give them a one-year licence of use for $500. Once that year is up they have to stop using the image or renew the licence. They don't own the image, I'm just giving them rights to use it. 

Moral Rights

Creators of copyright works (photographers, artists, writers, musicians, film makers..) have moral rights in relation to their work. These are separate from copyright. Moral rights impose certain obligations on people who use a copyrighted work. As a photographer I have the right to:

  1. Be attributed as creator of my photos/art
  2. Take action if my work is falsely attributed
  3. Take action if my work is distorted or treated in a way that is prejudicial to my honour or reputation

In other words: CREDIT THE FUCKING PHOTOGRAPHER! I can't tell you how many times I've seen a band share a photo I've taken and they can't manage giving credit but they will slap some shitty filter over it as if I didn't just spend a couple hours editing these photos. It's mostly local bands too. I'm not even going to sugar coat this: If bigger bands like Frank Carter and the Rattlesnakes, The Dandy Warhols, Il Nino and AFI know how to add a photo credit then so can you. Just to make a point..Davey Havok wasn't even an instagram genius when he posted this back in 2017, he had to do it twice, but he posted the photo with my watermark still showing, credited me in the caption AND tagged me. The trifecta! Screen Shot 2020-08-09 at 1.22.20 amScreen Shot 2020-08-09 at 1.22.20 am
I've shot bands while in Sydney and Melbourne and they all gave credit when sharing photos. It's just not that hard to add a tag to a photo. If they wanted to use a photo somewhere they'd write to me and ask first. Some even asked me how much would it cost to buy a high-res file whether it be for skateboards, CD covers or because it might be used commercially. Up until this year I had a 'social media download' option on my website so bands could download files for social media use. Asking for a $1 was apparently highway robbery. I think about 3-4 people used the option over 2 years and to those people I'm thankful. One guy DM'd me one night to ask if he could use a photo I'd taken as his facebook profile picture and how he screenshot my website. The balls on some of these guys are huge. By comparison I've had bands down south and in Adelaide pay up to $100 for a high-res photo and none of them complained about the price either. 

Another fun fact about copyright: A persons likeness is not protected by copyright. 

I lived with a musician who was also a law student and that alone I thought would make them smarter but I was so wrong. He 100% believed that if a photo was of him then he could do whatever he wanted to do with it. I told him he was wrong but he wouldn't hear about it - right up until he finally had the copyright class at Uni and he came home and told me I was right. Well duh. This is common though. The Creptter Children used one of my photographs on a tshirt without asking permission with the belief 'its my face I can do whatever'. I had a few people tell me "you better be getting royalties" and being the first time I was in this situation I didn't even think of it. I had only been back into shooting bands a year at that point (there was a break between 2001-2009 where I didn't photograph anything) and didn't care too much because I didn't think they would actually sell any...at least not at that price.

Screen Shot 2020-08-08 at 8.19.04 pmScreen Shot 2020-08-08 at 8.19.04 pm Back in 2014, one of my photos was used on bootleg merchandise in Bali as well. You hear of cases like this a lot with really well known photographers and unless you know who made it or where it's sold you can't do much about it. But local band Medicine (now known as The Light The Dark) were on tour and found bootleg merch AT THEIR SHOW! Lee who was bassist at the time uploaded this photo and I recognised my photo instantly. It was taken at the Rocket Room when Ebolagoldfish were in town. I actually regret not telling them to buy me one because whoever made these shirts ripped my photo off of Facebook so the quality must have been awful. Back then I was posting really small photos! Like 500 pixels high. You can't even print a photo off Facebook at the photo lab - it will be super pixellated. I know this from my Camera House days because this one woman would come in regularly printing out memes. Yes, memes. 

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The photo was about this size on facebook..so not that big.

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The case that prompted this blog also falls under Moral Rights. I got bored and looked up #PerthMusic on instagram one night. As I was scrolling I stopped when I saw my photo from one of the Breaking Punk shows I've covered, used in an artwork promoting a radio station. I messaged Leigh about it and neither of us had been contacted about using the image. 

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Photo taken during the Breaking Punk "Millencolin" night, 2018

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There's no mistaking whose photo it is here.

Their instagram post credited the guy who made the collage and that was it so I left a comment (and I'm paraphrasing) telling them perhaps they can tell him to seek permission before using other people's work as it's image theft. A week later I checked back and they deleted the comment. No reply or message. Just ignored it. That pissed me off. So I submitted an Intellectual property report to instagram and sent them a message. 

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IMG_2964IMG_2964 This went back and forth while they insisted they were allowed to use my photo without permission because of "Fair Use" while I argued they've ripped off a local event's photo (and my photo) for commercial purposes - this is advertising plain and simple. Fair Use doesn't exist in Australia. That's an American term. We have Fair Dealing and they are not the same thing. I'll discuss that a bit further down. They later claimed they got the photo from the artists socials (whereas they started out saying they were sent it) and the photo has not featured on Nervous Now or Mitch's instagram accounts. The photo is on my instagram, my Facebook page and on the Breaking Punk Facebook page. I have a pretty short fuse and being lied too isn't going to help the situation. Eventually the photo was removed but they still argued they had every right to do this to my photo and that they'll never use my photos again. That's literally not a problem for me. 

So I wrote to the Copyright Council's legal team.

I sent them an email of what happened and copies of my photograph and the image it was used in. I knew my photography copyright laws already but read up on Fair Dealing and just wanted them to clarify it all to me so if I was allegedly wrong they could tell me so I know for future reference. The short version is I was right. 

Screen Shot 2020-08-08 at 10.26.34 pmScreen Shot 2020-08-08 at 10.26.34 pm Screen Shot 2020-08-08 at 10.26.10 pmScreen Shot 2020-08-08 at 10.26.10 pm So like I mentioned earlier, as copyright owner I have the exclusive right to reproduce photos to make prints, to photocopy, to digitize, to publish or any other which way. They don't. This is a straight forward copyright infringement.

So what is Fair Dealing?

This is also a pretty simple. The Copyright Act has set defences or exemptions to infringement which allow some uses of copyright material without permission. There is no general exception for using copyright material simply because you think it's fair or because you are not making a profit. The Copyright Act allows copyright material to be used without permission only if your use is fair dealing for one of the following purposes:

  • research or study
  • criticism or review
  • parody or satire
  • reporting news
  • enabling a person with a disability to access the material
  • professional advice by a lawyer, patent attorney or trade mark attorney

Fair Dealing is use of the material in a way that is reserved for the copyright owner BUT there are limitations. Fairness is objective. For instance you can photocopy parts of a book (I think it's about 30% max) for study or research but you can't photocopy the entire book because you can just go buy it. Another factor is if copyrighted material has been used for commercial purposes and if the copyright owner is out of pocket from the use - eg where a person copies a work that is available for sale. I sell prints to bands/fans and digital files of my music photography to bands directly. This is how music photographers make any money. I've been doing so for about 5 years now but also both the Breaking Punk page and my instagram post where the image is located clearly states "Prints available". The fact that the person using the material is not making a profit does not make it fair.

Examples of Fair Dealing
My work has been used in both newspapers and on Channel 7 news so I'm no stranger to how Fair Dealing works. In 2014, Channel 7 used one of my photos (and photos by others) on a news story about a local musician who was king hit and in a coma. My watermark had been removed but I didn't particularly care, this wasn't a time to cry about copyright infringement when the guy I knew was in critical condition. The photo wasn't used for any commercial purposes, the photos were used to show what kind of character this man was to the viewer to emphasise their story. 

Below are two examples where I've been credited as photographer and both are also used to report news: Beerfridge had an article below the photo (I cropped it just to make a point and so you could see my name) and the Scalphunter clipping is part of a gig guide. The reporter even emailed me to seek permission to use the Scalphunter photo before putting it online. Neither photo has been edited in any way.

Beerfridge newspaper cropBeerfridge newspaper crop Screen Shot 2020-08-08 at 8.30.48 pmScreen Shot 2020-08-08 at 8.30.48 pm So you get the idea, right?

So in summary...

  1. Whoever created the work is the copyright owner.
  2. Just because you found a photo online doesn't mean it's free for use. There's literally sites filled with free photos you can download. Use one of them. Pexels.com is amazing.
  3. Buying a print doesn't give you rights to the image. 
  4. Uploading a photo to a website or blog does not mean you lose copyright protection. Social media has it's own sets of rules but that doesn't give the users any rights, only the organisation themselves and even then, have you seen Facebook use any of your friends photos? I doubt it. 
  5. Did you make the photo? If the answer is yes then carry on and have a nice day. If the answer is no, don't use it. Ask the author first and if you don't know who that is Google Image Reverse can help you 99% of the time. Still don't know who the author is? DON'T USE IT. 
  6. You are OBLIGATED to credit the photographer as well as ask permission before use.
     

 

 

 


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