Copyright in old family photos is a guide to what Australian copyright law says about copying an old photograph, written and published by Dotto. It covers how long copyright in a photograph lasts, who holds it, the one section of the Copyright Act that lets the owner of a photograph change its format for private use, the moral rights a photographer keeps, and how permission is asked for.
General informationDotto is not a photo restorer, a photographer or a copyright adviser. It does not scan, restore, retouch, colourise or print photographs, and does not offer or arrange that work. This is general information, not advice.
The law itself is the Copyright Act 1968, held on the Federal Register of Legislation; the Attorney-General’s Department’s copyright pages explain it for owners and for users. Both are linked at the foot of each page.
Two questions before any copy
Is it still in copyright?
For photographs taken before 1 January 1955, the National Library of Australia’s answer, in its summary of rights in its own Pictures Collection, is that every one of them is now out of copyright. For a later photograph, section 33 of the Act sets the term. In the main case, where no other rule in the section applies, copyright continues until “70 years after the calendar year in which the author of the work died”. Different rules apply where the author’s identity is not generally known, and where the work had not been made public before 1 January 2019.
Once the term is over, the Attorney-General’s Department says: “You can also use material without getting permission if its copyright term has ended and it is no longer covered by copyright.”
Whose copyright is it?
Holding the print is not the same as holding the copyright. Business Queensland makes the point with an everyday example: “You are the owner of the actual DVD, but you are not the copyright owner.” Under section 35(2), and subject to the exceptions in that section, the author is the owner of any copyright in an artistic work, and the Act’s definition of an artistic work names photographs. For a photograph taken before the Act commenced, section 208 reads “author” as the person who owned the material the photograph was taken on, at the time it was taken.
Four things people do with an old photograph
Each of these raises its own question, and each question has its own page.
| What is done | The question it raises | Where the answer sits |
|---|---|---|
| The owner copies their own print into another format | Section 47J lets the owner of a photograph make a copy in a different format, hardcopy to electronic or electronic to hardcopy, for private and domestic use, on conditions the section sets out. | Section 47J |
| Copies made to give away, share or put online | The Attorney-General’s Department lists three ways to use copyright material without infringing: the owner’s permission, an exception or statutory licence in the Act, or a copyright term that has ended. | Asking permission |
| Retouching or colourising | Apart from copyright, the creator of an artistic work holds moral rights, whether or not they own the copyright, for as long as copyright lasts. The guide describes those rights; it does not say whether any edit affects them. | Moral rights |
| Running it through an AI tool | IP Australia notes that uploading a picture you do not hold the rights for could, in some cases, infringe another rightsholder’s rights, and that each tool’s terms say what may happen to an upload. | IP Australia on AI |
The five pages of the album
- Is an old photo still in copyright?The 1955 line, the two tables in section 33 of the Copyright Act, and three worked examples.
- Owning the print, and who holds the copyrightWhy the print and the copyright are separate, who owns copyright first, section 208 for early photographs, and copyright left by will.
- Section 47J: the owner’s own copy in another formatSection 47J of the Copyright Act: subsections (1) to (6) in the Act’s words, and (7) in summary.
- Moral rights in a photograph, and what IP Australia says about AIThe three moral rights, how long section 195AM keeps them, and what IP Australia says about AI tools.
- Asking permission to copy a photographThe three ways to use copyright material, finding the owner, written permission and collecting societies.
What this guide covers
It covers the Commonwealth’s Copyright Act 1968, which applies across Australia, and the guidance the Attorney-General’s Department, IP Australia, Business Queensland and the National Library publish about it. Copyright protection is automatic in Australia, and there is no formal registration system, so there is no register to search for an old photograph’s owner. It names no business, product or person, and it says nothing about the care of prints and negatives. For the full text of the law, see the Copyright Act 1968 on the Federal Register of Legislation.