Photography copyright basics
Updated: Sep 16, 2020
Copyright laws are a complicated and sometimes confusing area of the law. I hope this clarifies the topic, but please note that I am not a lawyer. This advice is general in nature and not to be taken as professional advice. 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 a license for use of photos, but legal ownership 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 license fee for the use 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 licensing.
Photo licensing can be general or more specific. Some permissions are restrictive and are 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 a they are tied to particular time frame for usage. Some permissions are for editorial use only (not advertisements). Or, permission may be more general.
In most of my contracts, the licensing allows my clients to use 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 rights to my photos?
Some photographers allow clients to buy exclusive rights for one or more photos. You will definitely pay more for this type of exclusivity.