Every photo taken inherently contains copyright—that is the right to copy. Below we take a look at who owns copyright, what it gives them the right to do, and what represents a breach to that copyright.
The Copyright Act 1994 aims to protect the rights of the creator who originally expressed the “idea”—that is the image—by giving the creator a property right to that original work.
The owner of a photographic image—whether that’s a physical print or a digital image—decides who can copy, publish, sell, or show that work. All images are protected by copyright.
This article sets out a basic outline on who owns the rights to images according to the Copyright Act (1994) and how professional content creators apply it to their contracts.
ArchiPro supports photographers in ensuring copyright is enforced across our platforms, and provides an automatic watermark for photographers registered on our site.
This article outlines:
- Every image is owned by a copyright holder, even when found on Google
- The copyright holder is almost always a professional photographer
- To use a copyrighted image for marketing purposes, a usage licence is required. Please contact the photographer to discuss.
Please note, If you need information or advice on a specific issue, please seek legal advice.
Who owns an image and what does that give them the right to do?
According to New Zealand’s Copyright Act (1994), copyright exists from when a photograph is taken to 50 years from the end of the calendar year in which the photographer dies.
That copyright owner has exclusive rights to:
- Make copies for themselves and;
- Control the copying of that photograph by others (by licensing) and;
- Issue copies to the public and;
- Show the work in public and;
- Broadcast the photograph (on TV/Internet etc)
- Adapt or change the photograph and;
- Allow others to use your copy rights.
- Copyright itself can be jointly owned, in equal or unequal shares.
When is the photographer not the owner of the copyright?
Other than the photographer, the copyright owner can be:
- An employer (if the photograph is taken by an employee).
- The customer (if the photographer is commissioned to take the photograph)
Commissioning a photographer occurs when a client (such as an architect/designer) engages a photographer to take photographs and agrees to pay the photographer for that work.
New Zealand is pretty unique in assigning default copyright to the commissioning party; in most countries copyright is with the content creator by default.
To return copyright to the creator, the AIPA standard service agreement contains a clause that in effect negates the commissioning clause in the Copyrights Act, moving copyright from the commissioning party to the content creator, and it’s the most commonly used contract in New Zealand.
This means that for the majority of images on ArchiPro, the owner of the images is the photographer and if you want to use their images you need to have their permission.
Licensing images from the copyright owner
As above, most photographers retain copyright of their work through a written clause in their terms of service agreement. This means they put restrictions around the use of the images or “license” the images for certain uses.
A photography license is a contract in which the photographer grants specific rights to the client who wants to use their image(s). The client is free to use the photos in any way that doesn't go beyond the scope of the agreement.
For example, the license may give the client permission to use digital versions of the image for personal use/public use/for a length of time/for a specific publication/number of reproductions and may pose other specific conditions.
The AIPA Standard Photographic Terms and Conditions of Engagement is a commonly used agreement that includes standard terms for photography commissions.
For commercial photography it’s recommended to use a commercial contract, as found at http://www.nzipp.org.nz.
Even if you have licensed the images of a project, you are required to credit the image to the photographer.
The rights of people in photos
People, for example models, featured in a photograph must also be considered. Their rights include privacy rights, character merchandising rights, and the right to be represented in the image in a specific manner.
The basic premise around this is that for a breach to have occurred, the person must have suffered a loss (of privacy, income etc).
When using models, it’s important that they sign a release form so that if a dispute arises concerning the use of a model's image, the photographer is protected. However, a lot of work contracts or enrolment contracts (schools, university etc) contain a media clause that covers staff photos. So a Model Release form might not always be necessary.
Rights to photograph property
A building can be considered intellectual property, but buildings or objects (such as sculptures) that can be seen from a public place are able to be photographed without a release from the owner or creator of the work (architect or sculptor). Buildings have a specific photographic exemption in the Copyright Act, but when photographing private property, such as a home or commercial venue, it pays to have the owner and architect sign a property release form to avoid dispute.
If you are in doubt about whether you have the right to use an image, contact the photographer in the first instance, they will be happy to discuss.
Disclaimer
This article sets out a basic outline on who owns the rights to images according to the Copyright Act (1994). If you need specific information, or advice on specific issues, please seek legal advice.