2Who owns a commissioned photo
Who owns a commissioned photo
Under section 35(5) of the Copyright Act 1968, when a person makes an agreement, for valuable consideration, for a photograph to be taken for a private or domestic purpose, which the Act says “includes a portrait of family members, a wedding party or children”, that person owns the copyright in the photo. The photographer keeps a narrower say: if the purpose was made known when the agreement was made, they can restrain uses of the photo outside that purpose.
This is general information about the Copyright Act, not legal advice about any agreement or shoot. The Attorney-General’s Department publishes the official guidance on copyright, and the Act itself is on the Federal Register of Legislation. Both are listed at the foot of this page.
The textSection 35(5), word for word
“(5) Subject to the last preceding subsection, where: (a) a person makes, for valuable consideration, an agreement with another person for the taking of a photograph for a private or domestic purpose, the painting or drawing of a portrait or the making of an engraving by the other person; and (b) the work is made in pursuance of the agreement; the first-mentioned person is the owner of any copyright subsisting in the work by virtue of this Part, but, if at the time the agreement was made that person made known, expressly or by implication, to the author of the work the purpose for which the work was required, the author is entitled to restrain the doing, otherwise than for that purpose, of any act comprised in the copyright in the work.”
Copyright Act 1968, section 35(5)
This frame is about the first of the three kinds of commissioned work section 35(5) reaches, a photograph taken for a private or domestic purpose; the other two are a painted or drawn portrait and an engraving.
Line by lineThe subsection in five parts
| Part | The Act’s words |
|---|---|
| The agreement | “a person makes, for valuable consideration, an agreement with another person” |
| The photograph | “for the taking of a photograph for a private or domestic purpose” |
| Made under it | “the work is made in pursuance of the agreement” |
| The owner | “the first-mentioned person is the owner of any copyright subsisting in the work” |
| The photographer’s say | “the author is entitled to restrain the doing, otherwise than for that purpose, of any act comprised in the copyright in the work”, where the purpose was made known when the agreement was made |
The “author” in that last part is the photographer. The Act’s definitions say: “author, in relation to a photograph, means the person who took the photograph.”
The deciding wordsWhat a private or domestic purpose includes
Section 35 defines the phrase at its end:
“private or domestic purpose includes a portrait of family members, a wedding party or children.”
Copyright Act 1968, section 35
The word is “includes”, so the Act names those three as examples rather than setting a closed list. The National Library of Australia gives the same examples in its own words: a family portrait or a wedding photograph.
Frame 2 · A wedding is the Act’s own example
The default can moveAn agreement can change it
Section 35(5) is a default, not a fixed rule. Section 35(3) says: “The operation of any of the next three succeeding subsections in relation to copyright in a particular work may be excluded or modified by agreement.” The three subsections that follow it are 35(4), 35(5) and 35(6), so the parties to a private or domestic commission can agree to exclude or modify the result that section 35(5) would otherwise give.
Older photographsBefore and after 30 July 1998
The National Library of Australia explains that the date a photo was taken matters. For a photograph taken before 30 July 1998, copyright in a commissioned photo belonged to the person who commissioned it. For one taken after that date, it belongs to the commissioning person only if the photo was taken for a private or domestic purpose. The Library adds, on how long copyright lasts, that all photographs taken before 1 January 1955 are out of copyright.
Outside section 35(5)Three neighbouring rules, one line each
- Section 35(2)Subject to the section, the author of an artistic work, which for a photo means the person who took it, owns any copyright in it.
- Section 35(6)Where neither 35(4) nor 35(5) applies, work made under the terms of a person’s employment under a contract of service or apprenticeship belongs to the employer.
- Section 196(3)An assignment of copyright, total or partial, has no effect unless it is in writing and signed by or on behalf of the person assigning it.
What the photographer keeps regardlessMoral rights
Copyright ownership is not the end of a creator’s rights. The Attorney-General’s Department says moral rights apply to all creators of artistic works “regardless of whether they own copyright in the material”, and that “Moral rights cannot be assigned or licensed to another person.” A photograph is an artistic work under the Act, which defines artistic work to include “a painting, sculpture, drawing, engraving or photograph, whether the work is of artistic quality or not”. So a photographer whose client owns the copyright in a wedding album under section 35(5) still holds moral rights in those photos. The Copyright Act does let a creator give written consent to specified acts or omissions that would otherwise infringe these rights (section 195AWA), so an agreement can include one.
Commissioned work on location raises other questions this sheet covers: Parks Victoria runs a separate permit process for wedding photography, and the City of Melbourne requires a permit for photos inside the Fitzroy Gardens Conservatory, as set out in photos in national parks; and a portrait session with children is covered in children and photos. The cover page has all five frames.