Who owns the copyright in a photograph under the Copyright Act 1968 (Cth)?

Under the Copyright Act 1968 (Cth), copyright in a photograph subsists automatically as soon as the photograph is taken, without any requirement for registration. A photograph is protected as an artistic work under Part III of the Copyright Act. The general rule under s35(2) is that the author of the photograph — that is, the photographer who takes the picture — is the first owner of copyright. However, s35(5) provides an important exception: where a photograph is taken under a contract of employment in the course of the author's employment, the employer (not the photographer) is the first owner of copyright. Similarly, where a photograph is commissioned and the photographer takes it pursuant to that commission for private or domestic purposes (under s35(5)), the person who commissioned the work is the first owner of copyright in the photograph. This last rule was significant but was repealed in 2017 — for photographs taken after 21 December 2017, the general rule that the photographer is the first owner of copyright applies even where the photograph is commissioned, unless there is a written agreement to the contrary. Copyright in a photograph lasts for 70 years after the end of the calendar year in which the photographer dies (s33). These ownership rules make it critical to identify who owns copyright before entering into any photo licensing arrangement.

What are a photographer's moral rights in Australia and can they be overridden by a licence agreement?

Australian photographers hold moral rights under Part IX of the Copyright Act 1968 (Cth) that are personal to them as authors and cannot be assigned, transferred, or waived. Moral rights exist independently of copyright ownership and persist even after copyright is assigned. There are three moral rights: the right of attribution of authorship under s193 — the right to be identified as author when the work is reproduced, published, performed, or communicated; the right against false attribution under s195AC — the right not to have authorship falsely attributed; and the right of integrity of authorship under s195AI — the right not to have the work subjected to derogatory treatment that is prejudicial to the photographer's honour or reputation. Derogatory treatment includes distortion, mutilation, modification, or use of a photograph in a context that damages the photographer's reputation. A licence agreement cannot override these rights — it cannot include a clause purporting to waive or assign moral rights. However, under s195AWA, a photographer may give a written consent to acts that would otherwise infringe their moral rights. A well-drafted photo licence agreement should include a specific moral rights consent provision signed by the photographer, addressing the specific acts the licensee intends to perform, such as cropping, colour-adjustment, or use without individual attribution in bulk publications.

What is the difference between an exclusive and a non-exclusive photo licence?

The distinction between an exclusive and a non-exclusive photo licence has significant practical and commercial implications. Under an exclusive photo licence, the photographer grants the licensee the sole right to use the licensed images for the specified purpose and within the specified territory — this means the photographer cannot use those images themselves for the same purpose or territory, and cannot grant the same rights to any other person or business during the licence term. Exclusive licences command higher fees because the licensee is buying protection against competitors or others using the same images. Under a non-exclusive licence, the photographer retains the right to use the same images themselves and to grant the same rights to other licensees. Non-exclusive licences are common for stock photography and where the same image is suitable for multiple clients. The exclusive or non-exclusive nature of the licence must be clearly stated in the agreement. Ambiguity about exclusivity has been the subject of litigation in Australian courts, and terms such as 'sole use' or 'exclusive rights' must be carefully defined to specify: the territory in which exclusivity applies, the media or channels covered, the duration of the exclusive period, and whether the photographer retains any right to use the images personally.

Does a photo licence need to address the privacy of people depicted in the photographs?

Yes. Where the licensed photographs depict identifiable individuals, the licensor (photographer) should warrant in the licence agreement that all necessary model releases and consents have been obtained from those individuals. In Australia, using a photograph of an identifiable person for commercial advertising or promotional purposes without their consent may give rise to claims under the Privacy Act 1988 (Cth) (where the photographer or licensee is bound by the Privacy Act), state-based privacy or surveillance legislation, and the tort of appropriation of personality recognised in some Australian jurisdictions. Some Australian states and territories have enacted legislation dealing with the recording and use of images of individuals — for example, the Surveillance Devices Act 2007 (NSW) and equivalent legislation in other states. Additionally, if the photograph is used in advertising in a way that creates a false impression that the depicted person endorses the product, this may breach the misleading or deceptive conduct provisions of s18 of the Australian Consumer Law. The licensee should also be aware that use of images depicting children may be subject to additional regulatory requirements.

What remedies are available for unauthorised use of a licensed photograph in Australia?

Where a licensee uses a licensed photograph outside the scope of the licence — such as in an unauthorised territory, on an unauthorised medium, or for a purpose not covered by the licence — the photographer may have remedies in both contract law and copyright law. Under contract law, the photographer may sue for damages for breach of the licence agreement, seek an injunction to prevent further use, and in some cases claim account of profits earned by the licensee from the unauthorised use. Under copyright law, the unauthorised use may constitute copyright infringement under s36 of the Copyright Act 1968 (Cth) if it involves reproduction, communication, or publication of the photograph without the copyright owner's authorisation. The Federal Court of Australia and the Federal Circuit and Family Court of Australia have jurisdiction over copyright infringement matters. Remedies for copyright infringement include injunctions under s115(2), damages (including additional damages under s115(4) for flagrant infringement), account of profits, and delivery up of infringing copies. Under the moral rights provisions, a photographer whose right of attribution or integrity has been infringed may seek remedies under s195AZA, including an injunction, damages, and a public apology. In practice, many disputes over photo licence breaches are resolved through negotiation, with the parties agreeing on a licensing fee that reflects the actual use, or terminating the licence.

Photo / Image Licence Agreement (Australia)

Licence photographs or images for commercial, editorial, or corporate use in Australia with this professionally drafted Photo / Image Licence Agreement. Compliant with the Copyright Act 1968 (Cth) and the photographer's moral rights under Part IX, including the right of attribution (s193) and the right of integrity of authorship (s195AI). Covers exclusive and non-exclusive licence structures, commercial versus editorial use, permitted media and territory, attribution and credit requirements, moral rights consent under s195AWA, GST-compliant licence fee terms, post-licence takedown obligations, and limitation of liability consistent with the Australian Consumer Law.

What Is a Photo / Image Licence Agreement (Australia)?

A Photo / Image Licence Agreement is a legally binding contract between the owner of copyright in a photograph or image (the Licensor, typically the photographer) and a person or business that wishes to use that photograph or image (the Licensee). The agreement grants the Licensee a permission to use the photograph within defined limits — specifying the type of use, the media and channels, the geographic territory, and the duration — while the Licensor retains full ownership of all copyright in the image.

In Australia, photographs are protected as artistic works under Part III of the Copyright Act 1968 (Cth). Copyright subsists automatically from the moment the photograph is taken, without any need for registration. Under s35(2) of the Copyright Act, the photographer is generally the first owner of copyright. However, if a photograph is taken in the course of employment, the employer may own the copyright under s35(5). For photographs commissioned after 21 December 2017, the photographer retains copyright even where the photograph is commissioned, unless a written agreement provides otherwise.

A critical feature of Australian copyright law that distinguishes it from some other jurisdictions is the existence of moral rights under Part IX of the Copyright Act. Photographers hold three inalienable moral rights: the right of attribution (to be identified as author), the right against false attribution, and the right of integrity (not to have their work subjected to derogatory treatment). Moral rights cannot be assigned or waived, but a photographer may provide a written consent under s195AWA to acts that would otherwise infringe those rights. Any comprehensive Photo Licence Agreement in Australia should address moral rights and include the photographer's consent to the specific acts the Licensee intends to perform.

Photo licences commonly distinguish between commercial use (advertising, marketing, and promotional materials) and editorial use (news reporting, education, and non-commercial publication). This distinction matters because many stock photography licences only permit editorial use, and unauthorised commercial use of an editorial-only licence is a common source of licensing disputes.

When Do You Need a Photo / Image Licence Agreement (Australia)?

A Photo / Image Licence Agreement is needed whenever a business or individual wishes to use a photograph or image created by someone else, and the intended use goes beyond any fair dealing exceptions available under the Copyright Act 1968 (Cth). Without a licence, reproducing, publishing, communicating, or displaying a copyright photograph is an infringement.

Business and marketing agencies that commission or source photographs for advertising campaigns, product brochures, websites, social media, or outdoor advertising must have a valid licence to use those images for commercial purposes. A licence obtained from a stock photography platform is typically a non-exclusive licence with specific use restrictions — if the intended use falls outside those restrictions (such as using a web-use-only image in print advertising), a separate licence must be obtained.

Publishers, media outlets, and content creators using photographs for editorial purposes — such as news websites, magazines, books, and educational materials — require a licence, which for editorial purposes may be less costly than a full commercial licence but must still be in place.

Real estate agents, architects, and construction companies that use photographs of buildings, interiors, or projects in their marketing materials need a photo licence, particularly where a professional photographer was engaged to take the photographs.

Corporate businesses using photographs on their websites, annual reports, investor presentations, and internal publications all need valid licences for those images. The 'screenshot-and-use' approach — where images are taken from the internet without a licence — exposes businesses to copyright infringement claims and potential liability for significant additional damages under s115(4) of the Copyright Act.

In the fashion, hospitality, tourism, and event sectors, photographs of products, venues, events, and experiences are frequently licensed to third parties for promotion and publication. A properly documented photo licence protects both the photographer's economic rights and the Licensee's ability to use the images with confidence.

What to Include in Your Photo / Image Licence Agreement (Australia)

A comprehensive Australian Photo / Image Licence Agreement must address several key elements to protect both the photographer and the Licensee.

Identification of the Licensed Images: The agreement must precisely identify the photographs being licensed, including the number of images, subject matter, date taken, and any file reference numbers or catalogue identifiers. Attaching a schedule listing or depicting the licensed images is best practice.

Licence type: The agreement must specify whether the licence is exclusive or non-exclusive. An exclusive licence prevents the photographer from licensing the same images to others for the same purpose in the same territory during the licence term and typically commands a higher fee.

Type of use and permitted media: The licence must define whether the images may be used for commercial (advertising and promotional) or editorial (news and educational) purposes, and must specify all permitted media channels — such as print, digital, social media, broadcast, or outdoor. Use outside the permitted channels constitutes infringement.

Territory: The geographic scope of the licence must be clearly defined. Licensing an image for use in Australia does not automatically permit its use in overseas markets.

Attribution and credit: The agreement should set out the photographer credit line to be displayed whenever the image is published, consistent with the photographer's moral right of attribution under s193 of the Copyright Act.

Moral rights consent: The agreement should include a written consent under s195AWA of the Copyright Act from the photographer to the specific acts the Licensee intends to perform, such as cropping, resizing, or publishing without individual attribution.

Licence fee and GST: The fee must be clearly stated in AUD with reference to GST treatment. A tax invoice must be issued for taxable supplies.

Termination and takedown: The agreement must specify what happens to the images upon termination — the Licensee should be required to delete all digital files and remove images from all channels promptly.

Frequently Asked Questions

Related Documents

You may also find these documents useful:

IP Licence Agreement (Australia)

Grant or obtain a licence to use intellectual property in Australia with this comprehensive IP Licence Agreement. Covers copyright works under the Copyright Act 1968 (Cth), registered trade marks under the Trade Marks Act 1995 (Cth), patents under the Patents Act 1990 (Cth), and registered designs under the Designs Act 2003 (Cth). Supports exclusive, non-exclusive, and sole licence structures, royalty and lump-sum payment terms, sublicensing rights, moral rights consent under Part IX of the Copyright Act 1968, and GST compliance.

Photography Contract (Australia)

A professionally drafted Photography Contract for Australia protects both photographers and clients by clearly setting out the scope of services, deliverables, fees, copyright ownership, image licensing, privacy obligations, and cancellation terms in a legally sound document. Whether you are a wedding photographer, commercial photographer, portrait specialist, or event photographer, a written contract is essential to protect your creative work and your income. Copyright in photographs taken in Australia is governed by the Copyright Act 1968 (Cth). Under section 35 of the Act, the person who takes a photograph is the author of that photograph, and the author is the first owner of copyright — unless the photograph is taken in pursuance of a term of employment, in which case the employer owns copyright. This means that a freelance or independent photographer who takes photographs for a client owns the copyright in those photographs unless copyright is expressly assigned in writing. A photography contract that merely delivers images to a client does not automatically transfer copyright. If a client wants to own copyright, this must be stated explicitly in a written copyright assignment signed by the photographer. Most photography contracts grant the client a licence to use images rather than transferring copyright. The scope of that licence — personal use only, commercial use, exclusive or non-exclusive, time-limited or perpetual — should be clearly defined in the contract. For commercial photography, clients often require a broad commercial licence. For wedding and portrait photography, a personal use licence is typical, with the photographer retaining the right to use images in their portfolio. The Australian Consumer Law (ACL), which forms Schedule 2 of the Competition and Consumer Act 2010 (Cth), applies to photography services supplied to consumers. Consumer guarantees under sections 60 and 61 of the ACL require that services be performed with due care and skill and be fit for any specified purpose. These guarantees cannot be excluded or limited by contract. However, section 64A permits a limitation of liability to resupply or refund for services supplied to businesses. Privacy is a significant consideration for photography services involving identifiable individuals. The Privacy Act 1988 (Cth) and the Australian Privacy Principles (APPs) apply to businesses with an annual turnover exceeding $3 million, or to organisations that handle health information or biometric data. Australian Privacy Principle 3 (APP 3) regulates the collection of personal information, and photographs of identifiable individuals constitute personal information under the Act. Even for smaller photography businesses below the turnover threshold, good privacy practice requires obtaining consent before photographing identifiable individuals and being transparent about how images will be used. Where photography involves children, additional considerations arise. A parent or legal guardian must provide consent for the photography of a minor and for the use of images of that minor. Photographers working regularly with children should also consider whether a Working With Children Check (or equivalent) is required in their state or territory — requirements vary across Australia. Cancellation policies are commercially important for photographers who book sessions in advance and may turn down other work to reserve a date. A non-refundable booking deposit compensates the photographer for holding the date and declining other bookings. Scaled cancellation fees that increase as the event date approaches are commercially reasonable and are supported by general contract law principles in Australia, provided they represent a genuine pre-estimate of loss rather than a penalty. Model releases, though not universally required by law in Australia, are important for commercial photography where images will be used in advertising or marketing. Australia does not have a specific image rights or personality rights statute analogous to some US states, but using a person's image in advertising without consent may give rise to claims in passing off, misleading and deceptive conduct under the ACL, or breach of the Privacy Act. A model release clause in the photography contract is prudent for all commercial engagements. For photographers registered for GST, all invoices must be valid tax invoices under the A New Tax System (Goods and Services Tax) Act 1999 (Cth), and photography services are taxable supplies attracting 10% GST. The contract should clearly record whether the total fee is inclusive or exclusive of GST.

Photo and Video Release (Australia)

Create a legally compliant Australian Photo and Video Release granting a photographer, videographer, or production company the right to use an individual's image, likeness, and voice for commercial, promotional, editorial, or digital purposes. This template is drafted in accordance with the Privacy Act 1988 (Cth), the Defamation Act 2005, and the Copyright Act 1968 (Cth), and is suitable for professional photography, corporate advertising, social media campaigns, film and television production, fine art, and community events. In Australia, the use of an individual's photograph or video footage for commercial or promotional purposes engages several distinct areas of law. The Privacy Act 1988 (Cth) and the Australian Privacy Principles (APPs) govern the collection and use of personal information, including photographic images that identify individuals. Australian Privacy Principle 3 (APP 3) requires that an APP entity — meaning a government agency or private sector organisation with annual turnover exceeding AUD $3 million, as well as health service providers and other regulated entities — must collect personal information only with the individual's consent and for a lawful purpose. Australian Privacy Principle 6 (APP 6) requires that the information be used only for the primary purpose for which it was collected, or a permitted secondary purpose. A signed release that clearly identifies the purpose of use satisfies both APP 3 and APP 6 requirements. Australia does not have a statutory right to privacy of image or a general tort of invasion of privacy in the manner of some overseas jurisdictions. However, the Defamation Act 2005 — enacted in substantially uniform form in New South Wales, Victoria, Queensland, Western Australia, South Australia, Tasmania, the Australian Capital Territory, and the Northern Territory — provides a cause of action for defamation where publication of an image is accompanied by false imputations that damage the reputation of the depicted person. A signed photo release, by confirming the subject's consent to the use of the image, provides a strong defence to any claim of misrepresentation or breach of privacy arising from the use of the content. The Copyright Act 1968 (Cth) is also relevant. While copyright in a photograph vests in the photographer (or employer, if taken in the course of employment) under section 35 of the Act, the moral rights provisions in Part IX of the Copyright Act 1968 (Cth) confer on performers and creators the right of integrity — meaning the right to object to derogatory treatment of their image or likeness. A properly drafted release addresses moral rights consent under the Act, allowing the producer to adapt, edit, or crop the material without attribution unless expressly agreed otherwise. Where the subject of the photography or filming is a minor (under 18 years of age), additional considerations apply. State and territory child protection legislation — including the Children and Young Persons (Care and Protection) Act 1998 (NSW), the Child Wellbeing and Safety Act 2005 (Vic), and equivalent legislation in other jurisdictions — requires that a parent or legal guardian provide consent for the use of a child's image in commercial or promotional materials. This release includes a dedicated parental consent section for minor subjects. The release covers key commercial terms including the scope of the grant of rights (perpetual, worldwide, royalty-free), the permitted uses (commercial advertising, editorial, social media, film and television, fine art), compensation arrangements (if any), privacy rights under APP 12 (access to personal information), and the governing law of the release. Parties should both retain a signed copy of the completed release for their records.

Licensing Agreement (Australia)

Grant or obtain a comprehensive licence to use intellectual property — including patents, trade marks, copyright works, and technical know-how — in Australia with this professionally drafted Licensing Agreement. Covers exclusive, non-exclusive, and sole licence structures under the Patents Act 1990 (Cth), Trade Marks Act 1995 (Cth), Copyright Act 1968 (Cth), and Designs Act 2003 (Cth). Includes royalty and lump-sum payment provisions, GST compliance under the A New Tax System (Goods and Services Tax) Act 1999 (Cth), sublicensing rights, IP maintenance obligations, improvement ownership, audit rights, confidentiality, limitation of liability consistent with the Australian Consumer Law, and post-term non-competition provisions.

Non-Disclosure Agreement (NDA) (Australia)

Protect your confidential business information under Australian common law with a legally sound Non-Disclosure Agreement (NDA). Whether you are sharing trade secrets with a prospective partner, disclosing proprietary technology to a developer, or presenting financial projections to a potential investor, a properly drafted Australian NDA keeps your sensitive information under strict legal protection. Our template complies with Australian contract law principles and includes provisions addressing the Privacy Act 1988 (Cth) and the Australian Privacy Principles.