Rangefinder Magazine
Features

Kiwi Copyright Law by PJ Heller
Photographers Down Under Hope to Come Out on Top

While Many photographers in the United States battle rights-grabbing contracts, shooters in New Zealand face an even tougher fight when it comes to copyright of their images.

Unlike most countries like the U.S., where copyright belongs to the creator of the image, New Zealand law stipulates that copyright in an image automatically belongs to the person commissioning the work.

As a result, Kiwi photographers—among them editorial, wedding, portrait and commercial—are seeing their work being copied, resold and reused by others and are losing untold amounts of revenue.

“I know of photographers actually going into publishers’ offices and saying they don’t care about all this copyright stuff, they just want to get published,” noted veteran photographer Ralph Talmont of Auckland. “This kind of myopic, foolish behavior is only likely to undermine the efforts of those who actually understand this business enough to see where it is headed if we do not regain control of our work.”

To regain control, photographers down under are banding together to educate themselves, other photographers and their clients about copyright concerns. With little hope that Parliament will revise copyright statutes, photographers have taken it upon themselves to develop a set of “terms and conditions” to submit with their work which spells out exactly what rights they are licensing to their clients.

“We have a big task ahead, educating clients and educating photographers,” said Gerald Lopez, who immigrated to Auckland in March, 1999 after working in London and Malaysia. “If this is not done, the level of quality will drop further and it won’t be worth working here.

“The New Zealand photography industry needs a big kick in the arse if it is to grow, like the TV commercial industry, which is producing great work,” he added. “But we need copyright to do it. Why should people bother to be creative if they lose copyright?”

Lopez, Talmont and others agree that photographers who willingly give up their copyright without so much as a whimper— r receiving much higher fees for doing so —are harming the entire profession.

“This is the main reason for the situation we now face—many photographers are little concerned about their professionalism or retaining copyright in their works and just want to make a comfortable living,” Lopez said. “They are the ones undermining the industry and undermining efforts to improve the industry for every photographer.”
Those efforts have gained new impetus, thanks in part to the power of the Internet and two of New Zealand’s leading photographers’ groups, the Advertising and Illustrative Photographers Association (AIPA) and the New Zealand Institute of Professional Photography (NZIPP).

These two organizations were instrumental in drafting a set of “terms and conditions” for photographers to present to their clients.

Mike Reeves, president of AIPA, also set up the NZPhotographers e-mail list for Kiwi photographers, allowing them to share experiences, ask questions and discuss important business issues. More than 150 photographers subscribe to the list, which is similar to and an outgrowth of the much larger Editorial Photographers (EP) list in the U.S.
Last July, more than 180 photographers from throughout New Zealand attended an AIPA contracts and copyright seminar.

“We had an intellectual property expert give us an awesome talk on our vulnerability under the (Copyright) Act, and the need for terms and conditions, which he had drafted in liaison with AIPA,” Lopez recalled. “We also heard from leading NZ photographers Ian Batchelor, Mike Reeves and Ralph Talmont, who use the terms, and from Brian Moorhead on stock opportunities once you owned your work.”

Following on the success of that program, two NZIPP and AIPA copyright seminars were held earlier this year, one in Wellington, the other in Christchurch. Among the speakers were Reeves, Craig Horrocks, a specialist in copyright law and Batchelor.

Hugh Perry, executive director of NZIPP, said much of his organization’s efforts have gone toward getting members to use the terms and conditions that return the copyright to the photographer.

“The main issue is the generation of wealth by others,” Perry said.

“Our job as an institute is to improve photographers’ income even if we have to take them kicking and screaming to the bank,” he added.

As if copyright wasn’t enough of an issue, undercutting prices by some photographers is also a concern, reported Perry, who has been involved in wedding and portrait work for 30 years.

“There is a queue waiting to get into the industry and undercutting is a concern,” he admitted.
“Yes,” Lopez added, “they are out there waiting to pick up my work for next to nothing and no terms.”

Lopez added that assignment rates are already low and that being able to re-license images for other uses would help photographers throughout New Zealand. He said that images where he gave up copyright in the past have appeared on web sites and have been given to others for use in advertising.

“Of course I have lost money, but I made the mistake of giving away the copyright in the first place,” he said.

No longer.

Talmont, like Lopez and others, will not give up copyright even though his refusal hits the bottom line.

”I do not give up copyright,” insisted Talmont, a veteran photographer specializing in location work for book, magazine and corporate clients. “This has led to my giving up or losing out on several sizable jobs in the last two years adding up to tens of thousands of dollars.”

In addition to discussing copyright issues among themselves, Kiwi photographers are also working to educate their clients about how they can obtain all the necessary uses of an image—without having to hold copyright to the image.
“Right now, we’re making slow progress but we’re trying to effect dialog with the publishers to a mutually beneficial gain,” Talmont reported.

Lopez said that while there have been successes, more work still needs to be done.

“Many of the longer-established publishers are very wary of agreeing to the terms,” he noted. “They give many reasons, few of which really relate to copyright. I think they are unsure of the licensing system and are afraid of being shafted.”

New Zealand isn’t the only country where copyright law tends to favor the commissioner of the work rather than the creator. Countries where similar laws exist include South Africa, Canada, Venezuela and Australia, according to photographers in those countries.

Talmont said that educating photographers is the real key to addressing the copyright issue.

“Educating photographers in proper business practices—which includes primarily valuing your own work—is a major thrust,” he says. “Making them realize that unless they do something about their business now, they will not have to do so in a few years time as they will be out of business.”

P.J. Heller operates Dateline:, a free-lance photojournalism service based in Santa Barbara, Calif. He can be reached via e-mail at [pjheller@west.net].