Article by Sharon Givoni
Initially, the question of who owns a photograph would appear to seem quite straightforward – perhaps you feel that you, the designer owns the rights to a photograph. After all, the photograph is of your design work; your intellectual property - and you’ve paid the photographer (quite often handsomely).
Or perhaps you believe that the person who takes the photograph owns the rights?
In reality, there are many layers to this question and the answer is not so “black-and-white”. As with many areas of law, the answers will always depend on the facts.
At the Design Coach, we get a lot of questions from our members about this matter, so we decided to consult our resident legal expert Sharon Givoni, a specialist intellectual property lawyer. In this interview Sharon answers some of the questions about the intersection between photographers’ rights and interior designers’ rights and how we can protect our creative output.
Ultimately, when it comes to how the law considers copyright in photographs, Edward Steichen said it best: “A portrait is not made in the camera but on either side of it.”
The Design Coach (TDC): Thanks for speaking with us again Sharon. We’re aware that this can be quite an important issue for both designers and photographers. Firstly, we think it’s important to understand when the issue of copyright arises?
Sharon Givoni (SG): Often designers (and creatives in general) will hire photographers to take pictures of their work. The most common question posed to me by my clients in the design industry is this: do they own the copyright in those photographs, or does the photographer?
TDC: So, who actually owns the copyright in these project or product images?
SG: In Australia, the copyright laws are created by a set of rules which are laid out in the Copyright Act. The general rule is that, where a photographer is commissioned by an designer (architect, interior designer or stylist), the copyright in the photographs will remain with the photographer even though the designer has paid for the photography services.
TDC: I’m sure many interior designs would be surprised to hear that!
SG: Yes, but there are two main exceptions.
Firstly, a designer can create a contract that overrides this general rule and provides them with some ownership (all of it or some of it). In this scenario, the designer will always have the right to use the photograph for the purpose they were commissioned.
Secondly, where the photographs have been commissioned for a “private or domestic purpose”, then the person commissioning the photographs will own copyright. Notably, private and domestic purposes include wedding and family portraits and would exclude any commercial photography that is used to promote or sell a service.
TDC: Can you give us an example of how this works?
SG: Let’s say a designer uses a particular brand of paints in their design of an interior, and they commission a photographer to take a picture of it. Later, the paint company gets a hold of this great image and asks the designer if they can use the photograph for an advertisement.
In this situation, unless the designer and photographer have already negotiated something, the designer would not be allowed to give any other party the photographs to use even though they feature their own works in them. And whilst this may seem unfair, it’s just the way copyright law works, as it protects photographs but doesn’t protect the actual styling that is captured in those images.
In order to use them, the designer will need to revert back to the photographer. In fact, the photographer can insist on getting additional fees for that further use. It can always get very messy, which is why I often find myself drafting photography terms for my design industry clients.
TDC: What about using the photograph as part of the designer’s personal portfolio? Is that considered a further use that also requires further permission?
SG: As long as the personal portfolio was part of the use that was anticipated when the photographer was commissioned, then that will fall within the original license.
If the whole purpose of the photography was to give the designer something to showcase their works, then a portfolio will naturally fall within that original license.
Usually, photographers will expect designers to use images to showcase their work on their website, or through social media.
TDC: This sounds very complicated. What can designers do?
SG: I would first recommend having an open discussion with the photographer and reviewing their contract and/or terms and conditions.
If these terms don’t appeal, then designers could consider creating their own contract. This is important to ensure that both parties are clear about their rights and obligations.
The contract can be quite simple. There is a whole raft of issues that can be covered, so I won’t be able to go through them fully. Some issues that should be considered include:
· Who owns the copyright in the photographs?
· How and where can the designer use the photographs?
· What can the designer do with the photographs?
It’s also important to remember that the cost of the photography might increase if the copyright is assigned to the designer. Always have a conversation with your photographer to make sure you’re on the same page.
TDC: What if a designer doesn’t have an agreement in place?
SG: That is not an unusual situation. In that case, the law will imply a license for the purpose of “business efficacy”.
In plain English, this means that if the whole point of commissioning the photographs was to give the designer the ability to capture images of their own works for a certain purpose, then it would be unreasonable to prevent the designer from doing that.
This is because the ability of the designer to use those photographs is clearly the intention of both parties.
TDC: Are interior designers able to sell copies of the photographs to their clients, suppliers and media?
SG: In short, yes if they interior designer owns the copyright, and no if they don’t.
TDC: Having a project photographed can be an expensive exercise, due to elements such as styling and post-production. How does the law protect the interior designer’s input?
SG: Unfortunately for the designer, copyright does not protect styles or ideas, which means that the layouts, colour palettes, furniture, decoration and styling completed by the designer is not protectable. Put in the most simple of terms, copyright is owned by the person who clicks the shutter.
As the author Susan Sontag once said, ‘the painter constructs, the photographer discloses’.
TDC: If that’s the case, how can interior designers reduce costs of the project?
SG: Interior designs can consider teaming up with others such as suppliers or builders to share the photographer’s costs with them. But this is probably a commercial question rather than a legal one.
Ultimately, nothing replaces a proper contract. In addition to all the issues above, there are a whole raft of other issues I haven’t considered, such as whether you have input on the final modifications a photographer makes, whether the photographer can use the photos on their own website, how you are credited, the extent to which you are able to distribute the photographs, and whether you are attributed as the designer if someone licenses a photograph to use in an advertisement.
Designers are expressing their creativity through their unique styling and designs, and contracts are the ultimate tool in protecting that creative output. At the end of the day, contracts enable designers to do their work whilst building and maintaining effective relationships with other creatives.
This article was written by Sharon Givoni, principal solicitor at the law firm Sharon Givoni Consulting (https://www.sharongivoni.com.au/).
Disclaimer: This article is of a general nature only and must not be relied upon as a substitute for legal advice.
Sharon is currently updating her book “Owning It: A Creative’s Guide to Copyright, Contracts and the Law”, which was sold out due to popular demand.
If you need legal advice or contracts for your design business, contact Sharon’s team at: info@iplegal.com.au.
We work closely with Sharon Givoni through the Premium Group Coaching Program where we develop a custom group contract and educate our members in legal areas.
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