Liz and I had a brief discussion about NZ Copyright law over the weekend, and I thought I would write a short blog about the subject.
MASSIVE DISCLAIMER: these opinions are only my own thoughts, based on limited research into the Copyright Law in NZ. I am not a lawyer, and this blog should only be used as a starting point for your own research, and if in doubt you should consult a lawyer / expert in the field. I will include some links at the end of the blog to relevant information that I have used in learning about copyright.
What is Copyright?
The term copyright means pretty much what it says; the right to copy something. This relates to objects that are physical ( like books, paintings etc ) but also, in the modern digital world, to digital content as well.
If you hold copyright to a photo then you have full rights to copy, print, alter, sell and license that photo. When you share a photo on most social media platforms ( facebook, twitter etc ) then you normally are giving that platform limited license to reproduce that photo within the platform itself, but you still retain copyright.
My understanding is that only a legal person can hold a copyright ( which means a person, or a registered company ), and that only 1 person can be the holder of that copyright. You cannot share copyright.
New Zealand Copyright Law
The law on copyright as it relates to photography is, on the surface, fairly straight forward:
- the taker of the photo automatically has copyright over the photo created, unless
- the photo is being taken as part of a commission ( in which case the commissioner has copyright ), or
- the photo is being taken whilst working as employee ( in which case the employer has copyright ).
To clarify, a commission is when you are asked to take a photo for someone, and they agree to pay you ( in money or some other form ) for it.
The claiming of copyright by a commissioner or an employee can be overridden by a contract between the parties, which will allow the photographer to retain the copyright of the image.
If the photographer owns the copyright to an image, and they agree to allow someone else to use that image, either in a limited usage or an unlimited use, that is called a license to use, and does not affect copyright ownership.
If someone uses an image without the approval / license of the copyright holder then they have breached the copyright of the image because they have had to copy the image to use it. It is not the use of the image that is the breach, it is the copying of the image. So even if someone downloads the image and never uses it then technically they are still in breach.
There is no reason that a retrospective license cannot be issued for the use of an image, but again the breach of copyright has still occurred even if a license is subsequently issued.
There are some circumstances where an image can be used without breaching the copyright including using it as part of a review of the image, as part of a news report or for educational / research purposes.
One further point, if an image is commissioned but payment for the image is not forthcoming it is my understanding that this is not a breach of copyright, but is a breach of contract.
When I look at the laws of Copyright in NZ there are a few situations that I have never been able to get a clear idea on how it applies such as ( I would be happy if someone could clarify these for me )
- if a photographer is commissioned to take photos at an event is copyright held by the commissioner to all images taken, even if they are never delivered to them?
- when does a commission start and stop, and is it possible to 'tag out' of the commission and take photos which the photographer will hold copyright for?
- does the copyright apply to the unedited images ( if shot using RAW files for example ) or only the edited image? or both?
- if the photographer has taken photos under commission / employment are they even allowed to edit the images without breaching copyright or do they need a license to do so?
References for further reading.
Clendons Barristers and Solicitors
Copyright Council of New Zealand
So those are my thoughts on NZ copyright. Generally most non-commercial photographers will always hold copyright over their images but if someone offers to pay you a dollar ( or buy you an ice-cream etc ) to take their photo then that is a commission, so beware!
If you are wondering about the image at the top of this blog; it my most popular image for people to breach my copyright on, and also ( not unrelated ) is one of my best earning images!