First ownership default position
When a creator makes something, the general rule under the Copyright
Act 1994 is that they are the first owner of the copyright in the work.
The commissioning rule
However, where someone commissions (and agrees to pay) a creator to
create certain types of works, the person or organisation who commissioned the
work will own the copyright unless there is an agreement to the contrary.
This is known as the “commissioning rule”, but it is worth
noting that it only applies to commissioned photographs, computer
programmes, paintings, drawings, diagrams, maps, charts, plans, engravings,
models, sculptures, films, and sound recordings. See section 21(3) of the
Copyright Act.
The commissioning rule can be varied by agreement
The
rules of first ownership set out in the Copyright Act can be varied by
agreement. For example, a commissioning agreement could be negotiated to
stipulate that the creator retains copyright in works created. For more
information see the
"Contracts dealing with copyright" article.
Right to privacy in certain photographs and films
Some
types of commissions create additional rights for the commissioner. A
person who commissions a photograph or film for private or domestic
purposes (such as wedding photos or a family video), even if they don’t
own the copyright in it, has a privacy right. See section 105 of the Copyright Act.
This privacy right means the commissioner has the right not to have the photograph or film:
- published;
- exhibited or shown in public; or
- included in a broadcast or cable programme.
This
means if you’re working with clients who have commissioned videos or
photographs, it’s extra important to understand ownership and how the
material can be used. For example, you may want to be able to use
material for promotional purposes on your website.
A contract or release agreement can be used to ensure both creator and subject are clear on who owns which rights. See
AIPA or
NZIPP for sample release agreements.