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Monday 13 November 2023

Who Owns My IP When I Upload My Photos to a Public Website in Australia?

Original article by Shiryn Hagh, Lawyer, LegalVision.

Whether you are an amateur photographer or a professional, posting your photos on a public forum or website is an excellent way to gather interest in your work and boost your following. However, knowing your intellectual property (IP) rights is crucial when posting your photos online. This article will explore who owns your IP when you upload photos to a public website like Facebook or Instagram.

What is Intellectual Property?

IP refers to creations of the mind. These are the intangible assets that you create and may earn recognition for or financial benefit from. Although intellectual property is intangible, just like physical property, you can: 

  • own it;
  • sell it;
  • transfer the ownership
  • licence it; and 
  • take action against any trespassers (what we call ‘infringement’ in intellectual property law). 

There are various forms of IP rights and protection, including: 

  • trade marks; 
  • patents; 
  • designs; 
  • copyright; and
  • trade secrets. 

These property rights can represent a massive part of the value of any business. Intellectual property rights should be at the forefront of creatives’ minds.

As a photographer, you will own the intellectual property rights of your work as long as it is original and you have not assigned the rights or ownership to someone else. What is particularly important is the copyright you own in your photos.

What is Copyright?

Copyright is a type of IP that protects original works of authorship. Importantly, copyright protects the expression of original ideas but does not protect the ideas themselves. Copyright will only apply where the ideas have been materialised into a tangible or electronic form. 

Copyright gives exclusive rights to creators to manage how their content or creations can be:

  • used;
  • reproduced;
  • published; 
  • performed; 
  • communicated; 
  • distributed; or 
  • adapted.

The types of creative or original works that are protected by copyright include: 

  • artistic works such as paintings, drawings, sculptures, engravings or photographs, whether or not the work is of an artistic quality;
  • literary works such as lyrics, poems, books, novels, and also computer programs; 
  • dramatic works such as a choreographic show or a script for a film;
  • musical works, which refers to the music itself that is separate from the lyrics and the sound recording; and 
  • subject matters other than works such as films, broadcasts, sound recordings and published editions. 

In Australia, copyright automatically attaches to the material expression of creative or original works. For example, when you take an image on your camera, it will be protected by copyright in Australia. 

Uploading Your Photos Online

Nowadays, most photographers upload their photos online so anyone can view them. Some photographers may upload their photos on their websites. However, most will share their work on public websites like Facebook and Instagram. 

These websites will have Terms and Conditions that will outline the legal issues that photographers should be aware of, such as what happens when a photo is uploaded on these websites and the rights of the creator that may be affected. 

To upload content onto these public websites, you will often initially agree to the site’s Terms and Conditions. It is essential to review these Terms and Conditions carefully as they outline certain legal expectations and issues that a creator should be aware of. 

For example, most of the time, Terms and Conditions require you to agree and accept that the content you are uploading is your work and is not in breach of copyright.

By uploading a photo onto one of these sites, you also agree to enter into a licensing agreement with the website. This licensing agreement is between you (as the work’s creator) and the host website and often confers rights to the site to use the photo or other work in specific ways. These licences will be contained within the Terms and Conditions of the website, so it is essential to review these carefully. If you have questions about the Terms and Conditions and how they may affect your rights, you should speak to a lawyer. 

It is important to note that many public websites like Facebook and Instagram are based overseas and would be subject to the relevant law of that country and not Australian law. In these circumstances, you may need legal advice from a lawyer familiar with these jurisdictions. 

Key Takeaways

As a photographer, it is essential to know your intellectual property rights to protect your work and ensure that you are not infringing on anyone else’s rights, especially when posting your photos online. Most public websites will have Terms and Conditions, which you will agree to when creating an account or uploading your images which will outline the expectations that you own the copyright to the work you upload and that you are not in breach of anyone else’s copyright. 

If you have any further questions about your intellectual property rights or want to discuss your protection, our experienced intellectual property lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.

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