World Photography Day through the lens of Intellectual Property Law

Today we celebrate World Photography Day, to pay tribute to the art form of photography and to inspire photographers both amateur and professional across the planet to continue to share their world with the world.

Here, Senior Associate Louise Brunero from Solubility considers copyright issues relevant to photographers, including discussing the high-profile (and fact is stranger than fiction) ‘Monkey Selfie’ case from the US which considered whether a monkey could own and enforce copyright in a ‘selfie’ photograph. Louise also provides some tips for photographers wishing to use models in their photoshoots, sharing photographs on social media and on moral rights.

Photographs and Copyright

Photographs may be protected by copyright for 70 years after the author’s death. While copyright in Australia is free and automatic, and does not require registration, for copyright to subsist in a work it must meet each of these criteria.

•     The work must be a type of work that attracts copyright, with artistic works being most relevant to photographs.
•     The work must be recorded in a material form i.e. the work is not just an idea, it must have been recorded in a physical way, which is usually always satisfied for photographs.
•     The work must be original i.e. it is attributable to the author’s skill and labour, and not copied.
• The work must be substantial enough to be protected.

Importantly, just because you own the camera does not mean you will own the copyright. The general rule is that the photographer (which we learn from the ‘Monkey Selfie case’ discussed in more detail below must be a human photographer), as the author of the work, is the owner of the copyright. However, the following exceptions exist.

•     Employers generally own copyright in copyright material created by an employee in the course of employment, unless the employment contract states otherwise. This means a photography studio may own the copyright in photographs taken by employee photographers. Special rules apply for photographs made by employees of, and for including in, newspapers, magazines or similar periodicals.

•     Other contractual agreements can deal with copyright ownership or assign ownership from the creator to another person. For an assignment to be valid, it must in writing and signed by the copyright owner.

•     Commissioned photographs - copyright in commissioned commercial photographs is generally owned by the photographer but the client may have an implied licence to use the photos for the purpose for which they were taken. Copyright in commissioned photographs created for 'domestic or private use' (such as wedding photos or family portraits) will be owned by the person who commissioned the photo unless an agreement is signed to the contrary, but the photographer may be able to limit the use of the photos. If the photograph was commissioned before 30 July 1998, copyright will be owned by the person who commissioned the photo, regardless of the purpose, unless the photographer and client agreed otherwise.

Naruto, the female crested black macaque monkey, the selfie and the copyright lawsuit

Showing that fact is indeed stranger than fiction, what started out in 2011 as British wildlife photographer David Slater taking pictures of local wildlife in a national park in Indonesia, ended with a law suit involving a monkey in the US in 2014.

While taking photographs of a troop of monkeys, Mr Slater claimed that the monkeys took particular interest in his camera and clicked a few shots. The photographs were of poor quality, so Mr Slater adjusted the camera settings and one particular monkey ‘Naruto’ took interest in the reflection in the lens. She then snapped a number of ‘selfies’ which would later go viral.

It is this viral popularity of the ‘Monkey Selfie’ which triggered a dispute in the US courts in 2014 after Wikipedia uploaded the picture and described it as being in the public domain, citing that monkeys cannot own copyright. Mr Slater claimed copyright in the selfie (presumably on the basis of being the person who owned the camera and who chose and set the camera settings) and unsuccessfully tried to have it removed from Wikipedia.

In 2015, the People for the Ethical Treatment of Animals (PETA) subsequently sued Mr Slater on behalf of the monkey to claim copyright ownership of the selfies. PETA claimed that the selfie “resulted from a series of purposeful and voluntary actions by Naruto, unaided by Mr. Slater, resulting in original works of authorship not by Mr. Slater, but by Naruto.” The trial judge dismissed the claim on the basis that “the [US] Copyright Act does not confer standing upon animals like Naruto”. Even if Naruto had taken the pictures by “independent, autonomous action”, an animal could not sue for copyright infringement.

Surprisingly, PETA appealed the decision but the parties reached a settlement out of court and it is understood that Mr Slater committed to pay 25 percent of all future royalty revenue to the monkey sanctuary where Naruto lives.

While there has not been an equivalent case in Australia, it is likely that a similar approach would be taken.

Do I need a model release form?

A model release form gives the photographer the right to publish photos of people. When models are used in photoshoots, it is wise for the photographer to use a model release form so that the photographer and models are both aware of how the photographs may be used and to avoid any potential disputes down the track.

For a modest cost, the Arts Law Centre of Australia provides sample release forms for use when a photographer wishes to take photographs of a person whether alone or in a group shot, for a fee or without a fee. The Arts Law Centre also provides a useful case study regarding commissioned photographs by a commercial photographer and copyright ownership.

What rights does a copyright owner have?

Copyright in Australia is not a single right but rather a bundle of rights. The rights differ according to the type of work protected. The owner of copyright in a photograph has the following exclusive rights.

•     To reproduce the work, e.g. by reproducing the photograph on postcards or gift cards.
•     To publish the work, e.g. by publishing the photograph in a magazine or book or offering postcards or gift cards bearing the work for sale.
•     To communicate the work to the public, e.g. by posting the photograph to social media accounts or websites, or broadcasting such images.

It is an infringement of copyright to do these things without the permission of the copyright owner.

Are there Moral Rights in a photograph?

Moral rights are personal to the author of a copyright work and are separate to copyright in that work. Moral rights always remain with the author even if the copyright is owned by someone else (such as the employer, e.g. photography studio owner).

Where copyright subsists in a photograph, the photographer as the author would also have moral rights in respect of the photograph. A photographer’s moral rights are the rights:

•     to be attributed as the author;
•     not to have someone else falsely attributed as the author; and
•     not to have the photograph subjected to derogatory treatment (such as an act that results in a material distortion, mutilation, or alteration of a work that is prejudicial to the artist’s honour or reputation).

It is important to remember that a photographer could also have a moral rights claim in addition to any copyright claim that could be brought in relation to a photograph.

Top tip for photographers wishing to share their content online

Social media sites such as Facebook, Instagram, Twitter and Flickr each have ‘Terms and Conditions’ which can form a binding contract between the site operator and the person uploading an image.

If you own the copyright in a photograph and you wish to share that photograph using these social media sites, you should ensure you read the T&Cs as in many instances posting to a social media site grants that site licence rights to use the image (and in some cases can be very broad).

Want further information?

The Australian Copyright Council produces a number of free information sheets on copyright issues and includes information for photographers here.

The Arts Law Centre of Australia is a community legal centre which provides a number of legal advice services to artists and arts organisations. The ArtsLaw Centre also provides a free information sheet on putting your film or photograph online.

If you want assistance with model release forms, copyright assignment agreements, licences or moral rights consent forms or you want to know more about copyright and moral rights in photographs please get in touch with our team at Solubility.

You can also follow Solubility and Louise on LinkedIn and Solubility on twitter. 

This article is courtesy of Louise Brunero / LLB (Hons), BSc (Hons) / Senior Associate – Solubility

Copyright 2020, Solubility Pty Ltd and has been published with permission.