Picture this: Samsung gives a smartphone to Ellen with the intention of her taking a “selfie” at the Oscars for their own publicity. On the night, Ellen walks towards the audience to get them in the background, however someone (unknown) suggests that more celebrities get involved in a “super-selfie”. Ultimately, the phone is given to Bradley Cooper, who snaps the image that becomes the most tweeted image in history to date.

 

 

The answer under Australian law (Copyright Act 1968) is that the owner of copyright in a photograph is the person that actually takes the photograph.

The person who actually takes the photograph is deemed to be the “author” and therefore the owner, even if it was not taken on their camera or they were requested to do it by someone else.

However, this general rule is subject to some exceptions:

· First, copyright in a photograph taken during the course of your employment will be owned by your employer (except if you are a newspaper or magazine employee, in which case different rules may apply).

· Second, if you commission the photograph to be taken for valuable consideration and for a private or domestic purpose, you will be the owner of the copyright, unless modified by agreement. For example, a portrait photographer will often make it a term of the contract that they retain copyright ownership.

· Third, the government will own copyright in a photograph taken for government.

The above outcome is somewhat surprising and appears counter intuitive. Generally, you may think that if you asked someone to take a photo of you, it would be considered your photograph. But that is not necessarily the case. Of course, you can make an agreement with the person who takes the photograph that you will own the copyright instead. But under the Copyright Act, an assignment of copyright does not have effect unless it is in writing, which obviously has some practical difficulties.

Having said that, there would be strong argument that where you asked someone to take your photo using your camera, that person has granted you (as the owner of the camera) a very broad licence to use the photograph in whatever way you wish: worldwide, royalty-free and perpetual, with an unlimited right to sub-licence the copyright.

Where photographs are taken for a commercial purpose, such as for use in a website, generally copyright in each photograph is owned by the photographer unless the parties enter into an agreement transferring ownership to the business commissioning the photograph. If the parties fail to enter into such an agreement, misunderstanding and conflict can arise. It could also mean that the business is left with the cost and inconvenience of recommissioning further photographs.