The default rule: the creator owns the copyright

In most jurisdictions, including Malaysia, the starting point is that copyright in a photograph belongs to the person who took it. Under the Malaysian Copyright Act 1987, copyright subsists automatically in original works, and no registration is required for protection to arise. The photographer is the author of the work, and as author, they are the first owner of the copyright.

This default rule applies regardless of the equipment used, the subject matter captured, or the purpose for which the photograph was taken. A wedding photographer, a photojournalist, a commercial studio photographer, and a teenager with a mobile phone are all, in principle, entitled to the same copyright protection in the images they create.

The default rule is, however, subject to important exceptions, and it is in those exceptions that most disputes arise.

Employment: when the employer owns the copyright

The first major exception concerns photographs taken in the course of employment. Where a photograph is created by an employee in the course of their employment, the copyright in that photograph generally vests in the employer rather than the employee, unless there is a contractual agreement to the contrary.

This rule has significant practical implications. A staff photographer working for a newspaper or magazine, a marketing executive who photographs products as part of their job, or a social media manager who captures content on behalf of their employer will generally not own the copyright in the images they produce during the course of their employment. Those images belong to the employer.

The boundaries of what constitutes work done in the course of employment can, however, be contested. A photograph taken by an employee at a company event on a personal device, outside working hours, may fall outside the scope of employment and therefore outside the employer’s claim to copyright. These are precisely the kinds of ambiguities that well-drafted employment contracts should address in advance.

Commissioned photographs: a persistent source of confusion

The second major area of confusion concerns commissioned photography. The instinctive assumption of most clients who commission and pay for a photoshoot is that they own the resulting images. In Malaysia, as in many common law jurisdictions, this assumption is not necessarily correct.

Under the Copyright Act 1987, where a photograph is commissioned for private or domestic purposes, copyright vests in the person who commissioned the work. Where the commission is for other purposes, including commercial ones, the position is less straightforward and will depend on the terms of the agreement between the parties.

In the absence of a written agreement that expressly addresses ownership, a commercial client who has paid for a photoshoot may find themselves holding a licence to use the images rather than owning the copyright outright. This distinction matters enormously in practice. An owner of copyright can sublicense the images, prevent others from using them, and benefit commercially from them in perpetuity. A licensee can only use them within the scope of the licence granted.

The solution is straightforward: every photography commission should be accompanied by a written agreement that addresses copyright ownership, the scope of any licence granted, the permitted uses of the images, and whether the photographer retains the right to use the images in their portfolio. Leaving these matters to assumption is an invitation to dispute.

Joint authorship: when two photographers collaborate

A less commonly discussed but practically important scenario arises when two or more photographers collaborate on the creation of an image or series of images. Where contributions are not distinct and separable, the resulting work may be a work of joint authorship, in which copyright is shared equally between the contributors.

Joint ownership of copyright is not always a comfortable arrangement. Each co-owner generally has the right to exploit the work without the consent of the other, subject to an obligation to account for any profits. Decisions about licensing, enforcement, and assignment of the copyright may require agreement between all co-owners, which can become difficult where relationships deteriorate or commercial interests diverge.

For photographers who collaborate regularly, a simple co-authorship agreement setting out the respective rights and obligations of each party can prevent a great deal of future difficulty.

The subject in the photograph: image rights and privacy

Copyright ownership in a photograph and the right to use that photograph are two entirely different things. A photographer may own the copyright in an image and yet be restricted from publishing or commercialising it by the rights of the people depicted in it.

In Malaysia, while there is no standalone image rights legislation, the Personal Data Protection Act 2010 and common law principles of privacy and passing off can all be engaged where an individual’s image is used commercially without their consent. In other jurisdictions, notably in continental Europe and parts of the United States, the right to one’s own image is more explicitly protected by statute or constitutional principle.

For commercial photographers, brands, and marketing agencies, the practical implication is clear. Obtaining a signed model release from every identifiable individual who appears in a photograph intended for commercial use is not optional. The release should specify the scope of permitted use, the platforms and territories covered, the duration of the licence, and whether the image may be altered or used in composite works. An unsigned release, or one that does not cover the intended use, provides no protection at all.

AI-generated photographs: the emerging frontier

The rapid advancement of artificial intelligence image generation tools has introduced a new and unsettled dimension to the law of copyright in photographs. Two distinct questions arise. First, where a photographer’s work is used without permission to train an AI model, does that constitute copyright infringement? Second, where an AI tool generates an image that closely resembles a real photograph, who if anyone owns the copyright in that output?

On both questions, the law is actively developing and litigation is underway in multiple jurisdictions. The prevailing position in most countries is that copyright requires a human author, meaning that a purely AI-generated image produced without meaningful human creative input may not attract copyright protection at all. For photographers and visual content creators who have invested years in developing a distinctive style, this landscape presents both a threat and a challenge that the existing IP framework was not designed to address.

Conclusion

The question of who owns the copyright in a photograph is deceptively simple. In practice, it depends on a web of factors including who took the photograph, in what capacity, under what agreement, and for what purpose. Getting the answer wrong can be costly, whether you are a photographer who has inadvertently given away rights you intended to keep, or a client who has assumed ownership of images you are not legally entitled to use.

In a world where visual content is more commercially valuable and more widely distributed than ever before, understanding copyright in photography is not a luxury. It is a necessity.

For further enquiries or advice, please contact us at kass@kass.asia for expert guidance.