Image courtesy of Max Vakhtbovych via the Pexels License. Available at: https://www.pexels.com/photo/spacious-living-room-in-studio-6312362/
Initially, the question of who owns a photograph would appear to seem quite straightforward – the person who takes the photograph. However, not always. As with many areas of law, the answers will always depend on the facts. The reality is, there are many layers to this question and the answer is not so black-and-white.
Here we consider the intersection between photographers’ rights and interior designers’ rights and how you can protect your 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.”
When does the issue of copyright and photography arise?
Often interior designers (and creatives in general) will hire photographers to take pictures of their work. The most common question from my designer clients in my practice is this: do they own the copyright in those photographs, or does the photographer?
Who owns the copyright in these photographs that interior designers commission?
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 a interior designer, the copyright in the photographs will remain with the photographer even though the interior designer has paid for the photography services.
Would many interior designs be surprised to hear that?
Yes, but all is not lost – there are two main exceptions.
First, if the interior designer makes a contract that overrides the general rule, and provides that the Interior designer who own some aspects of use (all of it or some of it). In this scenario, the interior designer will always have the right to use the photograph for the purpose they were commissioned.
Second, 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.
What is an example of private or domestic purpose when it comes to photographs?
Let’s say an interior 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 ahold 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 photograph. In fact, the photographer can insist on getting additional fees for that further use.
o interior designers need contracts with their photographers?
Yes. Having a solid contract in place means that everyone knows their rights and obligations, so long as it has been well drafted.
The contract can be quite simple. There are a raft of issues that can be covered including who owns the copyright in the photographs, how and where the interior designer can use the photographs as well as what the interior designer can do with photographs.
This will address issues about how the interior designer can use or change the photographs, and to whom they can give the photographs.
What if an interior designer does not have any agreements in place?
The law will imply a license for the purpose of “business efficacy”.
This means that if the whole point of commissioning the photographs was to give the interior designer the ability to capture images of their own works for a certain purpose, then it would be unreasonable to prevent the interior designer from doing that.
This is because the ability of the interior designer to use those photographs is clearly the intention of both parties.
What if the photographer does not charge a fee, but offers a freebie - does that change the rule?
This muddies the waters. Even though there is still potentially an implied licence from the photographer to the interior designer, it can be harder to prove unless there is clear documentation behind it such as a contract.
Are interior designers able to sell copies of the photographs to their clients, suppliers and media?
The short answer is – yes if they interior designer owns the copyright, and no if they don’t.
Having a design photographed can be an expensive exercise, due to aspects such as styling and post-production. How does the law protect the interior designer’s input?
Unfortunately for the interior designer, copyright does not protect styles or ideas, which means that the layouts, colour palettes, furniture, decoration and styling done by the interior designer is not protectable. Put in the most simple of terms, it’s the person who clicks the shutter. The person who clicks the shutter is the one who creates a copyright work.
As the author Susan Sontag once said, ‘the painter constructs, the photographer discloses’.
If that is the case, how can interior designers reduce costs of the project?
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.
Some final comments…
As trite as it may sound, nothing replaces a proper contract. In addition to all the issues above, there are a whole raft of other things that I haven’t considered.
For example: whether you have input on the final modifications a photographer makes, whether the photograph can use the photos on their websites and 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.
Ultimately, interior 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 interior designers to do their work as well as building and maintaining effective relationships with other creatives.
What about using the photograph as part of the interior designer’s personal portfolio? Is that considered a further use that also requires further permission?
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 photographs was to give the interior designer something to showcase their works, then a portfolio will naturally fall within that original license.
Comments