Owning a photograph does not, on its own, make someone the owner of its copyright. Under the Copyright Act the author is the first owner of copyright in an artistic work, subject to the exceptions in section 35; copyright is personal property that can pass by assignment or by will; and for a photograph taken before the Act commenced, section 208 treats the owner of the film or other material as its author.
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 Act’s rules on ownership; it does not say who owns the copyright in any particular photograph. The Act is on the Federal Register of Legislation.
Two kinds of ownership in one print
Business Queensland’s copyright pages draw the line clearly. The person who owns an object is not necessarily the person who owns the copyright material in it, and its example is a film on disc: the buyer owns the disc itself, while the copyright in the film sits with someone else. A print in a shoebox works the same way. Having it, inheriting it or buying it at a market passes the paper, and says nothing by itself about the copyright.
The same page adds that one item can carry several copyrights at once, so anyone reproducing it needs to check who owns each part. The Act itself allows for a photograph with another work inside it: section 47J speaks of a work “included in the original photograph”.
Who owns the copyright first
Section 35(2) starts from the author. Unless another part of the section says otherwise, copyright in an artistic work (or a literary, dramatic or musical one) belongs to its author. The Act’s definition of an artistic work names photographs, and in its definitions the author of a photograph is the person who took it. The words “Subject to this section” matter: section 35 goes on to change that result in three settings: work for a newspaper or magazine proprietor, work done by an employee under a “contract of service or apprenticeship”, and a photograph commissioned for a private or domestic purpose.
Photographs taken before the Act commenced: section 208
The legislation history printed with the Act gives its commencement as 1 May 1969. For photographs older than that, section 208 says who the author is.
“(1) A reference in this Act to the author of a photograph shall, in relation to a photograph taken before the commencement of this Act, be read as a reference to the person who, at the time when the photograph was taken, was the owner of the material on which the photograph was taken.”
“(2) However, if the owner of the material on which the photograph was taken was a body corporate, then subsection (1) only applies in respect of references to the author of the photograph that relate to the ownership of the copyright in the photograph.”
Copyright Act 1968, section 208
For a photograph taken before the Act commenced, wherever the Act speaks of the photograph’s author, read it as the person who owned the film, plate or paper the photograph was taken on, at the moment it was taken. If that owner was a company or another body corporate, the substitution covers only what the Act says about the author in deciding who owns the copyright.
So for an early photograph, the person who pressed the shutter and the person the Act calls its author can be two different people.
When the copyright owner has died
“(1) Copyright is personal property and, subject to this section, is transmissible by assignment, by will and by devolution by operation of law.”
Copyright Act 1968, section 196(1)
The Attorney-General’s Department describes copyright as dealt with like other personal property: among other things, it can be left after death, by will or otherwise, or given away. So copyright in a family photograph may have passed down a line of wills and estates quite apart from the print, which may have gone another way.
Assignments and licences
Section 196 sets the rules for passing copyright on during the owner’s life. In summary:
- An assignment can be partial: it can cover only some of the acts the owner has the exclusive right to do, only one area within Australia, or only some of the years the copyright runs.
- For an assignment, whole or partial, to take effect, it has to be in writing and signed by the assignor or for the assignor.
- A licence works differently, and keeps working after the copyright changes hands: “A licence granted in respect of a copyright by the owner of the copyright binds every successor in title to the interest in the copyright of the grantor of the licence to the same extent as the licence was binding on the grantor.”
Finding out who holds it now
There is no official register to look the answer up in. The Attorney-General’s Department says copyright protection in Australia is free and automatic, with no formal registration system. A copyright notice, where one appears on a print or its mount, identifies the owner, according to Business Queensland. Where no owner can be found, the Department suggests the material’s publisher or distributor may be able to help; the guide to asking permission takes that further.