Your Photos, Your Rights: Brown v Wingecarribee Shire Council and Copyright Enforcement for Photographers

Photographers are often surprised to discover that enforcing their copyright does not necessarily require expensive Federal Court proceedings. The 2020 decision in Brown v Wingecarribee Shire Council [2020] NSWCATAD 102, handed down by the NSW Civil and Administrative Tribunal, illustrates an important point: copyright belongs to the photographer from the moment the shutter clicks, and even government bodies have an obligation to licence images before using them. When they don't, they can be held accountable — including in a tribunal that is more accessible and cost-effective than the Federal Court.

Background

Mr Brown was a photographer who held copyright in photographs he had created. Wingecarribee Shire Council — a local government authority in regional New South Wales — had used Mr Brown's photographs without obtaining a licence from him. The photographs appeared in the Council's publications, website, or promotional materials.

Mr Brown brought a complaint to the NSW Civil and Administrative Tribunal (NCAT) alleging copyright infringement and seeking compensation. The case raises issues that are directly relevant to every photographer whose work is used by councils, government agencies, businesses, or individuals without payment or permission.

Copyright in Photographs: The Basic Principles

Under the Copyright Act 1968 (Cth), photographs are protected as artistic works. Copyright arises automatically at the moment the photograph is taken — there is no registration system, no form to file, and no fee to pay. The photographer (as the author of the work) is the first copyright owner, subject to limited exceptions:

• Where the photographer is an employee who takes photographs in the course of their employment, copyright vests in the employer;

• Where the photograph is taken pursuant to a contract that expressly assigns copyright to another party.

In all other cases — including freelance photographers and those who take photographs for general commercial purposes — copyright belongs to the person behind the camera.

What the Copyright Owner Controls

The copyright owner of a photograph has the exclusive right to:

• Reproduce the photograph (including by downloading, copying, or printing it);

• Communicate the photograph to the public (including by publishing it on a website or including it in digital publications);

• Publish the photograph for the first time; and

• Authorise others to do any of these things.

Any of these acts done without the copyright owner's licence constitutes infringement.

The Council's Position: Public Bodies Are Not Exempt

One of the important principles illustrated by this case is that government bodies — including local councils — are not exempt from copyright obligations. The Copyright Act does contain some specific provisions for government use of copyright material (the Crown copyright provisions in Part VII), but these do not create a general licence for government bodies to use private copyright works without permission.

A council that downloads a photographer's image from their website or portfolio and uses it in council publications, social media, tourism promotion, or development applications is reproducing and communicating a copyright work without licence. The fact that the use is for a public or community purpose does not constitute a defence. Neither does the fact that the council is a not-for-profit entity or exercises statutory functions.

The NCAT Forum: An Accessible Option for Smaller Copyright Claims

Most copyright disputes in Australia are pursued in the Federal Court or Federal Circuit and Family Court, which have exclusive jurisdiction over copyright matters under the Copyright Act. However, NCAT and equivalent state tribunals can exercise jurisdiction over certain copyright disputes — typically where the claim is characterised as a consumer or civil dispute rather than a pure intellectual property claim.

For smaller copyright claims — where the disputed use involves a relatively small number of images, or where damages are modest — a tribunal forum offers practical advantages:

• Lower cost: Tribunal proceedings are generally less expensive than Federal Court litigation. Filing fees are modest, and proceedings are designed to be accessible without legal representation (though legal advice is still recommended).

• Faster resolution: Tribunal hearings are typically scheduled more quickly than Federal Court matters.

• Less formal procedure: Tribunals operate with more flexible procedures than courts, which can reduce the procedural burden on smaller claimants.

Photographers and other small copyright owners should be aware that a tribunal may be a viable forum for claims that would be economically irrational to pursue in the Federal Court.

Licence Defences: What Councils and Businesses Often Argue

In cases like Brown v Wingecarribee, the most common defences raised by the party using the photographs are:

• Implied licence: An argument that the photographer implicitly consented to use of the photographs (for example, by making them publicly accessible online). Courts are generally sceptical of this argument — making an image available online does not grant a licence to use it commercially or in publications.

• Incidental copying: Section 77 of the Copyright Act provides a narrow defence for incidental inclusion of copyright material. This is unlikely to apply where photographs are deliberately selected for use in publications.

• Fair dealing: The fair dealing defences (sections 40–43) apply to specific purposes including research, criticism, news reporting, and parody. Promotional or publication use by a council does not typically fall within any fair dealing category.

Strategic Takeaways for Photographers and Image Creators

• Your copyright is real and enforceable — even against councils. Government bodies have the same obligation to licence images as private businesses. Do not accept the premise that public bodies have a right to use your work without payment.

• Watermark and document your work. Maintaining records of when photographs were created, where they were first published, and any metadata embedded in image files strengthens your copyright claim if it is ever disputed.

• Consider the NCAT or equivalent forum for smaller claims. For disputes involving a modest number of images or modest damages, a tribunal may be more cost-effective than the Federal Court. Seek advice on which forum is appropriate for your circumstances.

• Issue a licence demand promptly. When you discover your photographs have been used without authorisation, act promptly. Delay can complicate your claim and may be used to argue acquiescence or implied licence.

Strategic Takeaways for Councils and Businesses Using Images

• Licence every image you use. Whether you source images from a professional photographer, a stock library, or a social media feed, you need a licence that covers your intended use. "Found it online" is not a licence.

• Maintain licence records. Keep documentation of every image licence you hold — licence agreements, purchase receipts, and the specific uses authorised.

• Act on infringement notices quickly. If a photographer contacts you claiming infringement, respond promptly and seek legal advice. Ignoring the claim can result in tribunal or court proceedings and a damages award that significantly exceeds the licence fee you should have paid in the first place.

Conclusion

The Brown v Wingecarribee Shire Council decision is a practical illustration of copyright enforcement by a photographer against a government body — and a reminder that local councils, like private businesses, must respect intellectual property rights. For photographers asserting their rights, the case shows that accessible tribunal proceedings can be a viable path to compensation. For organisations using images in their communications, it is a prompt to audit image licensing practices before a claim arrives.

Stellar IP Law advises photographers, content creators, and businesses on copyright licensing, enforcement, and dispute resolution. Contact our team to discuss your image copyright matters.