Asking permission to copy a photograph

Three ways to use a photograph that is in copyright, or was

1. The term has ended. Material whose copyright term is over can be used without permission. Whether that has happened depends on section 33 of the Act, set out in the guide to whether an old photo is still in copyright.
2. An exception or statutory licence applies. The Act sets out exceptions and statutory licences under which a use does not infringe. One of them, for the owner of a photograph changing its format for private use, is section 47J.
3. The copyright owner gives permission. Otherwise, in the Department’s guidance, the owner of the copyright is the one to grant it.

A licence may already be in place

Before asking, the Department points out, it is worth seeing whether permission has already been given. Copyright owners often grant general permission for some uses through an end user licensing agreement, so a photograph’s terms of use, or an open licence on it, may already cover what someone has in mind. The Department adds that Australian Government agencies are required, wherever they can, to make their copyrighted public sector information available under a Creative Commons or other open content licence.

Finding the owner

Where no licence applies, the next step in the Department’s guidance is to contact the copyright owner directly, and where no contact for the owner can be found, the publisher or distributor of the material may be able to help.

A few facts from the government’s pages shape that search:

• Copyright exists automatically once material is recorded, with nothing to register.
• A © notice is not a legal requirement, though the Department calls it sound practice, so a print with no notice on it is not shown by that alone to be free of copyright.
• Where a notice does appear, it identifies the copyright owner.
• One item can have several owners for its different parts, so each part may need checking.

For an old family photograph the owner may be the photographer, an employer, the person who commissioned it, or whoever has inherited the copyright since. The guide to owning the print and the copyright sets out how the Act decides.

Permission in writing, and the difference from an assignment

The Department’s advice is to get permission in writing wherever possible, because an agreement made only in conversation can later be hard to prove, or to hold anyone to.

Permission to use a photograph is a licence; the copyright stays with its owner. IP Australia, describing licences granted for payment, puts it as the owner letting someone else use the material without owning it. Handing over the copyright itself is an assignment, and for that the Act goes further than advice: under section 196(3), an assignment takes effect only once it is written down and signed by the assignor, or by someone signing on the assignor’s part.

Collecting societies

Some permissions come through a collecting society rather than from the owner in person. In the Department’s description, a society can license some uses of the works it holds, and has authority to collect fees for those uses, which it then shares out among the copyright owners.

Paid copyright registration

Because Australian copyright needs no registration, the Department warns about websites that charge to “register” or protect copyright: nothing gives them the authority to guarantee protection here.

If copyright is infringed

From the owner’s side, the Department lists the options when a copyright owner, or their authorised representative, suspects infringement: approaching the person directly to seek redress, or going to court to enforce the rights.