After developing your work, you are astounded. A rush of adrenalin drives through you as you admire how your work reflects the image and light perfectly. These are the photographs you have aspired to produce since the beginning of your career. You are sure they will be worth a substantial amount.
But are they your photographs to sell?
The issue of copyright ownership often arises in creative industries. Questions and disputes regarding who becomes the owner of an image illustrate there remains some confusion in the photographic industry, notwithstanding the laudable efforts of AIPA and NZIPP in educating their members and the profession generally.
The general rule regarding copyright ownership is encompassed in the Copyright Act 1994. The Act provides that a photographer will own copyright of a photograph if it is not:
(a) Taken in the course of employment (in which case copyright vests with the employer); or
(b) “Commissioned” by a third party (in which case, it is the third party who is entitled to copyright ownership). This rule is referred to as the “commissioning rule”.
The commissioning rule has been the root of an ongoing series of disputes, indicating that the current law is proving to be problematic in practice and suggesting that reform is required.
There are common scenarios where the commissioning rule becomes consistently problematic. For example, when an image intended for one use is used for an alternate purpose. This scenario contributes to unfair commercial exploitation of works with no financial relief for the photographer.
Another arises in an unwritten engagement, where the photographer purports to reserve copyright on the product delivered. This is often by way of copyright statement upon delivery of the work. However, the contract is formed at the time of the unwritten agreement. Therefore, the photographer is generally unable to impose terms after contract formation, regarding copyright ownership or otherwise, without the agreement of the client.
After years of sustained lobbying by stakeholders in the photographic industry, the Ministry of Economic Development released a Discussion Paper in March 2006, testing the water for a possible change to the commissioning rule.
Some of the key issues recognised in the MED paper were the unequal bargaining power when photographers are negotiating with commercial clients. Furthermore, there is concern that a contract for the commission of work for a particular purpose fails to take into account any future use when establishing price. As a result, photographers are not receiving financial gain that reflects their effort but rather are having their work exploited by those who own copyright.
The deadline for submissions to the Ministry of Economic development was 31 st May 2006. Comprehensive submissions were made by both NZIPP and AIPA, amongst others. Several submissions favoured the repeal of section 21(3) of the Copyright Act, resulting in the ownership of copyright vesting in the creator.
Where to from here?
After consideration of the submissions received, the Ministry of Economic Development will submit a report to cabinet, recommending whether a change in the law should occur. If a change is approved, the legislation amendment process would then, we expect, take its usual course.
In the meantime, suppliers of photographic services are encouraged to be vigilant in protecting their key rights and entitlements on an engagement-by-engagement basis, in particular, by contracting out of the commissioning rule as part of the formulation of the contract of engagement.
Gabrielle Lourens
Solicitor, Clendons
Clendons is an Auckland based law firm, specialising in copyright and intellectual property issues. The firm is a sponsor and representative of various New Zealand visual arts organisations including AIPA, NZIPP and DINZ.
