All photographers and copywriters should have written agreements in place to ensure that the ownership of copyright in works is clear. When it isn’t, there can be disputes, and heartache.
Copyright law really involves a big bundle of rights that people have in their creations. These creations are defined as “works” under the law. The “works” of copywriters, content writers and authors is usually classed as a “literary work”, and the work of photographers is usually classed as a “photo” – makes sense.
Even though there is no formal method of registration for copyright in Australia, and copyright happens automatically, there are a few hurdles to jump across before a work can attract copyright protection. Firstly, the “work” needs to be sufficiently original. Then it needs to have involved a sufficient amount of effort. These are nuanced legal concepts, but you get the idea.
If you can establish that your work is original and involved a sufficient amount of effort, you don’t need to do anything further to get copyright protection. You don’t need to put the © symbol, even though it can be a good deterrent, and you don’t need to do anything else. However, it is always a good idea to keep drafts of your written work or evidence that you took the photographs. (this can help prove you are the owner if there is a dispute down the track). It is also a good idea to have a copywriter agreement or photography agreement which sets out clearly the ownership of various rights.
Having a written copywriter agreement means that as a writer, you can clearly set out what your client may or may not do with the work. Perhaps you wish to have the work you write attributed to you. You may also want to use it for your own promotional purposes, or even sell it to another client. With clear terms, you can ensure that you can use the work again if you want, in the way that you want. It’s also important to ensure that you and the client are clear on the extent of the use they can make of the work. Are you assigning copyright to them so they now own the work, or are you keeping the copyright but licensing them various rights? If so which rights? Are they allowed to post the work on social media channels? Can they use it for adverts? Can they use it in print media? And what about on their website? A copywriter agreement with clients will help clarify these issues.
Having a written photography agreement means that you can set out what a client may do with the work. Generally copyright in a photo belongs to the photographer. However, there are some exceptions. Some exceptions are where you take wedding photographs, family portraits or Xmas shots; here the owner of copyright will be the client. Also if photos are commissioned, there is an assumption that the client owns the copyright. However, if you are taking photos for any other purpose, that is not for “private or domestic purposes” then you, the photographer are the first owner. This will generally include all the photographs you take for commercial purposes, such as marketing, or team shots or other photographs for businesses.
Because there are many rules at law, it is best that you have a photography agreement written up so it is really clear with your clients who is going to own what rights in the photographs, and what they can be used for. You may want to permit a business to use the photographs in their social media campaign, but not for any billboard advertising. As a photographer of course you will want to restrict the extent of the license to use the photos, or negotiate a higher fee. The photography agreement should also deal with who is going to own the digital files.
If you are a copywriter or photographer and want a well drafted agreement with your clients please contact us.