Photography copyright basics
Updated: Oct 7, 2021
Copyright laws are a complicated and sometimes confusing area of the law. I hope this clarifies the topic, but I am not a lawyer. This advice is general in nature. For more information on this topic, visit Copyright.gov.
1. Who owns the photos?
Photographs are intellectual property. Per United States copyright law, photo ownership starts and almost always stays with the photographer, unless they are a staff photographer being paid a salary by a company.
2. What if I hire a photographer? Does this mean the photos belong to me?
No. Even when you have hired a photographer for a photo session, this is usually a contractor relationship. The photographer will still be the owner of the photos. The photographer negotiates usage for the photos, but legal ownership of the copyright belongs to the photographer.
3. I'm being featured in a magazine/online publication. Can I give them photos from my session?
No. You do not have the right to give the photo to a third party to use. This is a very common mistake. Let's say you own a bakery, and you pay a photographer to take photos of your cupcakes. A magazine calls and asks if they can use the photos in a story they are publishing about you. The answer is no. The magazine becomes the user of the photo when they are publishing it for their own editorial. Most photographers would be happy to have their work featured in a magazine, but that publication will have to pay the photographer for the use of the photos.
This exact situation happened to me in 2016. I shot a set of photos for a local bakery. A few months later, they gave the photos to a nationally distributed publication, without notifying me or asking the magazine to contact me. At that time, I didn't know enough about copyright law to realize that I should have negotiated a usage fee for the editorial publication of that photo, even after it was printed. I do not blame the owners of the bakery. I was not using contracts at the time, so we had no clear written agreement.
4. How the photo is used often affects the price of the usage.
Photo usage can be general or more specific. It might be tied to a particular medium or size (i.e.: one trade magazine 1/2 page ad, one direct mail piece, or one billboard ad), or usage might be tied to particular time frame (i.e.: editorial use for one year.)
In most of my contracts, the usage allows my clients to publish their photos on websites, social media and in print material produced by the client's business, like business cards, brochures, etc.
5. What if I want to buy exclusive usage to my photos?
Some photographers allow clients to buy exclusive usage for one or more photos. You will pay more for this type of exclusivity.