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There are a lot of intellectual property considerations to make for a photographer. While you may work as part of your own business, clients may commission you to take photographs, and you will often be taking photographs of other people. This can make intellectual property tricky because it is hard to know who owns it and who has the right to share it. As a photographer, it is important to understand copyright and moral rights. Understanding these two concepts is key for your work and will avoid conflict about your intellectual property later down the track. This article will define copyright and moral rights in regards to a photographer’s work.

Who Owns the Photograph?

There are three scenarios in which you can determine the owner of a photograph. They are:

  • you as the photographer own the photograph because you were not commissioned or employed by someone else to take it;
  • your employer owns the photograph because you took it as part of your employment; or
  • your customer owns the photograph because you took it after being commissioned by them.

Once the owner of the photographs is determined, they have the right to:

  • copy and share the photographs;
  • prevent others from copying and sharing the photographs; and
  • take legal action against anyone who misuses the photographs.

Any person found to be using photographs that they do not own without permission can be taken to court or fined.

Copyright

In New Zealand, copyright is applied automatically to any original work that you produce, including photographs. Once applied, copyright lasts 50 years from the death of the photographer who took the picture. The rights and protections given by copyright determine who can use, share and benefit from your work. This has become increasingly important with social media allowing users to instantly share content, sometimes without giving credit to the creator or owner. You can mark your copyright work with the © symbol to show others that it is yours.

If you want others to be able to use your work, you can either sell them your copyright with an assignment or enter into a licence agreement with them. An assignment means that part or all of your work will be transferred to and owned by someone else. A licence agreement allows you to retain ownership of your work but at the same time permits others to use the work in any way that you agree to.

Moral Rights

Similarly to copyright, moral rights are applied automatically in New Zealand to artistic work such as photographs. Moral rights do not just apply to you as the photographer but also to those in the photographs. There are four main rights to consider.

Right to be Identified

This is your right to be recognised as the creator of the work. It means that those who are using or sharing the work have to clearly credit you regardless of whether you still have ownership or not. You will need to expressly state this to anyone who uses or shares your work before you start working with them.

Right Against False Attribution

In contrast, this is your right not to have work falsely credited to you. If you did not create the work, others should not use your name as the creator. This could be a simple mistake if someone genuinely does not know you are not the creator or if the ownership has changed. If it is an honest mistake like this, they can fix it easily. If it is intentional and persistent, you can take legal action.

Right to Object to Derogatory Treatment

This is your right not to have your work changed negatively. Derogatory treatment in this context means altering your work so that it harms your reputation as a creator. This could occur if someone has ownership of a photograph you have taken and defaces it while your name is still attached to it. The derogatory treatment has to be negative, and it cannot just be a change you disagree with.

Right to Privacy in Certain Photographs and Films

If you have taken a photograph of someone else and retain ownership of it, that person has a right to privacy. This means that the photo is for private or domestic use only unless the subject permits otherwise. The photograph cannot be used for marketing purposes or shared in any way without permission.

Key Takeaways

As a photographer, there are many intellectual property considerations you have to take to protect your rights and the rights of others. The key intellectual property tools to consider are copyright and moral rights. If you are unsure who owns the photograph you are taking, speak to those you are working with to establish clear ownership. If you have any further questions about protecting your photographs, contact LegalVision’s intellectual property lawyers on 0800 005 570 or fill out the form on this page.

Frequently Asked Questions

Are moral rights registrable?

Like copyright, moral rights are not registrable. They are granted immediately upon the creation of your photographs.

How do I enforce copyright?

If someone has infringed your copyright, there are steps you can take to defend your work. This may require legal action, and it is best to seek legal advice in this situation.

How do I enforce a moral right?

Similarly to enforcing copyright, you can pursue legal action if you think someone is infringing your moral rights.

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