All Images on this site are for viewing only. All images appearing in the jamesselwynphotos.com site are, unless otherwise stated, the exclusive property of James Selwyn and protected under New Zealand and International copyright laws.
The images may not be downloaded, reproduced, copied, stored, manipulated, projected, used or altered in anyway including without limitation any digitisation or synthesizing of the images, alone or with any other material, by use of computer or other electronic means or any other method or means now or hereafter known, without the written permission of James Selwyn and payment of a fee or arrangement thereof.
What is copyright?
In New Zealand, copyright is an automatic legal right which protects original literary, dramatic, musical and artistic works, sound recordings, films, communication works and the typographical arrangement of published editions.
The Copyright Act, 1994 protects the following types of “works”:
- Literary works, including
- written works, such as letters, e-mails, journal articles, novels, screen plays,
- poems and song lyrics;
- tables and compilations, including compilations of data and multimedia works;
- computer programs;
- Dramatic works, including dance, mime and film scenarios or scripts;
- Musical works, being the music itself, separate from lyrics or sound recording;
- Artistic works, including paintings, drawings, diagrams, maps, engravings, etchings, photographs, sculptures and architectural works;
- Sound recordings, being the recording of sounds itself, separate to the actual music or story;
- Films, being the moving images on a video or DVD, separate from underlying works such as scripts and music;
- Communication works, including radio and TV broadcasts and Internet transmissions, separate from the films, music and other material which they contain;
- Typographical arrangements of published editions, being the layout of a published edition of the whole or part of a literary, dramatic or musical work.
Copyright protects original works, whether in hard copy or electronic form.
Copyright is the right to copy.
That right exists in every photograph from when it is taken and lasts for 50 years from the end of the calendar year in which the photographer dies. (Section 22 (1) of the Copyright Act, 1994)
Someone, although not necessarily the photographer, owns copyright in every photograph.
That right gives the copyright owner the exclusive rights to:
- Make copies for themselves and;
- Control the copying of that photograph by others (by licensing) and;
- Issue copies to the public and;
- Show the work in public and;
- Broadcast the photograph (that is show it on TV or display it on computer terminals over computer networks like the Internet and similar broadcasts) and;
- Adapt or change the photograph and;
- Allow others to use your copy rights.
(see Section 16 (1) of the Copyright Act, 1994).
If the work is of a different type to a photograph, that is another type of artistic work or a literary work there are other rights that may be relevant.
Copyright is all about property rights. This right to copy can be sold or part of the rights licensed to others for them to exploit the photograph. Copyright itself can be jointly owned, in equal or unequal shares.
For example a photograph may be used by a postcard manufacturer and also for a book of photographs. In this case the copyright owner would usually license the two organisations that wanted to use the copyright, the book publisher for the use in the book and the postcard manufacturer on the postcards. The copyright owner might be paid a flat fee or royalties (or a combination) for each use.
Why is copyright important?
Copyright enables those who have created a work, such as a photograph or an image, to be paid for their creativity and to be acknowledged as the creator (see section on Moral Rights). Others can only use copyrighted work with the permission of the copyright owner. The owner will often charge for this permission. Copyright owners can also control how their work is used i.e. how it is copied, distributed, altered, transmitted, broadcast or performed. Anyone who uses a copyright work without permission can be guilty of infringement and action could be taken against them.
Do content creators apply for copyright?
No, copyright comes into existence automatically under the Copyright Act 1994, when a work is put into material form e.g. manuscript, audio/video recording. No registration is necessary (or even possible), nor is any other formality required for securing copyright protection.
Is copyright protection enforced by law?
The Copyright Act 1994 forms the basis for copyright protection in New Zealand. Copyright law is an attempt to balance the interests of those who create the particular work or composition and those who want to use it or enjoy it.
Who owns copyright?
Under Section 21 of the Act the ownership of the copyright usually vests, upon creation of the work, in the author. However there are two situations where this is not the case:
- Where certain copyright works are created by an employee in the course of his or her employment; or
- Where certain copyright works are created pursuant to a commission.
Both of these cases include photographs and unless there is an agreement to the contrary, the ownership vests in the employer or commissioner.
A "commissioning" requires two elements:
- The engagement/ retention/ briefing of the photographer by a client; and
- Payment, or an agreement to pay, for the photographic works.
Section 21(3)(b) then provides that, where a work is produced under such a commission, then copyright vests in the commissioning client.
Although not expressly stated, the language of section 21 strongly indicates that the commissioning arrangement (both (i) and (ii)) must exist before the image is created. Copyright will vest immediately upon creation, and in the absence of a pre-existing commissioning arrangement, copyright will only vest in the client if a formal assignment in writing is subsequently completed, which must be signed by the owner or their authorised representative (section 114).
How long does copyright last?
In New Zealand:
- Literary, dramatic, musical and artistic works - Copyright continues for 50 years after the end of the calendar year in which the author died.
- Sound recordings and films - Copyright continues for 50 years from the end of the calendar year in which they were made. However, if the work is made available to the public before the end of that 50 year period, copyright continues for 50 years from the end of the calendar year in which it was first made available.
- Communication work - Copyright continues for 50 years from the end of the calendar year in which it was first communicated to the public. Copyright in a repeated communication work expires at the same time as copyright in the initial communication work expires.
- Published material - Copyright in the typography of a published edition lasts for 25 years from the end of the calendar year in which the work was first published.
How is copyright infringed?
Copyright comprises a collection of rights – basically copying, issuing to the public (including renting), performing, broadcasting, storing by electronic means, posting on the internet or adapting the work. Copyright is infringed if any of these acts are carried out without the copyright owner's permission. When this happens, the copyright owner can take legal action against the person or organisation who is infringing. Such infringement requires that a “substantial” part of the work is copied or used without permission by someone else. Anyone who gains permission to use an item which is in copyright needs to be clear what it's going to be used for. If it's ambiguous and it's used for something not explicitly agreed, this could be infringement. Where multiple copyrights exist, each one needs to be cleared before it can be used.
What if the photographer is being paid by someone else to take the photographs?
In most situations this will not affect ownership of the copyright – it is the person creating the work and not the person paying for the work who owns copyright.
If a client pays a photographer for a single photograph or disc/download/email of photographs does the client then own the copyright?
No. In the same way that owning a music CD does not give you the right to copy the music on it, a disc/download/email of a photograph/s does not give you copyright in the photograph/s on the disc/download/email.
If a client wants to sell, display publicly, reproduce or make their own copies of photographs they have received from a photographer do they need permission?
Yes. Copyright belongs to the photographer. This will only change if there are terms in the contract (licence) to allow this.
If a photographer is commissioned to take photographs of a private event (such as a wedding) is he free to use the photographs however he/she likes?
The Copyright Act 1994 gives the client the right not to have photographs taken for private or domestic purposes issued to the public, exhibited or broadcast without their permission. Therefore, although the photographer owns the copyright in this situation, the client can control how they are used . It obviously makes sense for photographer and client to agree from the outset how the images are to be used to avoid difficulties later on.
If a photograph is retouched or digitally altered can this avoid infringement?
No. Doing so without permission of the original copyright owner will not avoid infringement.
If I take photographs of people without their permission am I infringing copyright?
No. There is no copyright on people. However once a gain other factors need to be considered. Taking photographs of someone in their own home without their permission is likely to be seen as an invasion of privacy and possibly harassment. While there is no law against taking a photograph of someone in a public place, care needs to be taken. Strictly speaking such a photograph can be used for commercial purposes but this is not always straightforward. A crowd scene may not be a problem but where individuals are clearly identified this might be regarded as personal data and therefore come under a different Act if used for commercial purposes. Clearly how the photograph is used can also be an issue; anything which could affect the reputation of the subject of the photograph is likely to cause problems. Gaining permission, and wherever possible the use of a model release for any commercial use, can reduce the risk of potential difficulties.