The Copyright Act gives creators moral rights, which the Attorney-General’s Department describes as non-economic rights that apply whether or not the creator owns the copyright, and which cannot be assigned or licensed. For a photograph, section 195AM keeps them in force only until copyright ceases to subsist, so a photograph that is out of copyright, such as one taken before 1 January 1955 on the National Library’s account, carries none.
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.
This page describes the rights and how long they last. It does not say whether any particular change to any photograph affects them. The Act is on the Federal Register of Legislation.
The three moral rights
Part IX of the Act, on moral rights, names three rights an author holds, and it gives them only to individuals: “Only individuals have moral rights.”
| Section | The right | What the Act says it is |
|---|---|---|
| 193 | Right of attribution of authorship | “the right to be identified in accordance with this Division as the author of the work” when certain acts are done with it. |
| 195AC | Right not to have authorship falsely attributed | Named in its heading; its detail is not set out here. |
| 195AI | Right of integrity of authorship | “the right not to have the work subjected to derogatory treatment”. |
The Act defines derogatory treatment separately for each kind of work, with its own section for artistic works, and it also sets out cases that are not an infringement. Those sections are not set out in this guide.
Who holds them, and who cannot
The Department’s page on copyright owners explains that moral rights belong to the creators of literary, dramatic, musical and artistic works, and to film-makers and performers, and that this holds even where someone else owns the copyright. The Act’s definition of an artistic work includes photographs. The Department adds that moral rights are not something a creator can transfer: they cannot be assigned, and they cannot be licensed.
So for a family photograph, the person who holds the copyright and the person who holds the moral rights may differ.
How long they last: section 195AM
“(1) An author’s right of integrity of authorship in respect of a cinematograph film continues in force until the author dies.”
“(2) An author’s right of integrity of authorship in respect of a work other than a cinematograph film continues in force until copyright ceases to subsist in the work.”
“(3) An author’s moral rights (other than the right of integrity of authorship) in respect of a work continue in force until copyright ceases to subsist in the work.”
Copyright Act 1968, section 195AM
Subsection (1) is about films only. A photograph is a work other than a cinematograph film, so subsections (2) and (3) apply to it: the right of integrity, and the other moral rights, each continue until copyright in the photograph ends.
That ties the moral rights in a photograph to the copyright term in section 33, set out in the guide to whether an old photo is still in copyright. Where the National Library’s 1955 line places a photograph out of copyright, no moral right in it continues either.
What IP Australia says about AI tools
IP Australia’s IP First Response has a page of points to weigh before using artificial intelligence to create material. It is written for businesses, and its points about pictures read as follows, in summary:
- What goes in. Anything uploaded in a prompt, pictures included, may be protected material, and uploading work you do not hold the rights for could, in some cases, infringe the rights of other rightsholders.
- Where it goes. Every tool has its own terms of use, and some allow the company behind the tool to keep or reuse uploads.
- What comes out. For many kinds of work, copyright needs a human author, and how far an AI tool was used can make it a hard question whether copyright protects the result.
- Who owns the result. Providers differ: some terms say the user owns the output, others keep wide rights to store or reuse it, and all such terms are subject to the law.