As a photographer, I see a lot of people becoming confused about the topic of copyright ownership. As a creator, it’s something I think about quite a bit. Thanks to the ubiquity of photography and its high popularity on the internet, most people would really benefit from learning about the legal ins and outs of copyright law. Today, I’m discussing some of that very thing and how it relates to photography. Buckle up, this could get dense.
Let’s start things off with a definition. What in the world is copyright? The dictionary is a great resource.
- Noun: copyright; Plural Noun: copyrights The exclusive legal right, given to an originator or an assignee to print, publish, perform, film, or record literary, artistic, or musical material, and to authorize others to do the same.”He issued a writ for breach of copyright”A particular literary, artistic, or musical work that is covered by copyright.
- Adjective: copyright Protected by copyright.”Permission to reproduce photographs and other copyright material”
- Verb: copyright 3rd person present: copyrights; past tense: copyrighted; past participle: copyrighted; gerund or present participle: copyrighting secure copyright for (material).”He refused to copyright his music, insisting that anyone be able to use it”
–Oxford English Dictionary
Basically copyright is a legal concept. It refers to the exclusive (meaning no one else can without permission) ability to recreate, publish, perform, etc. the creation (also called “work”) in question be it a photo, painting, piece of software, book, article, etc.
In short, copyright tells you what you can do with a creation within the bounds of the law.
Now this is a very easy question on the surface. The original creator automatically gets the copyright. It gets a bit convoluted when you’re dealing with a group of people creating something together. However, I’m not talking about something which a group of people creates. I’m talking about something which an individual creates, namely a photograph.
When it comes to photography, United States law says that the photographer automatically receives the copyright of each an every photo he/she takes. This is, of course, assuming that the photographer is a human. An animal cannot own anything legally including copyright.
If you want to read up more about animals and copyright ownership, check out this article from Wikipedia talking about the time that PETA sued a photographer on behalf of a monkey over a selfie that said monkey had taken and said photographer published. Cliff notes version is that it didn’t go well for PETA.
I bet I’ve got your attention now on copyright ownership. Since the photographer gets copyright automatically, what do you do if you want the copyright and you’re not the original creator? Well, there are options for you. You can either arrange for a copyright transfer or you can arrange for a use license.
Here is a bit more specific definition though it’s got some legal-sounding jargon. “Generally, the difference between the two is that licenses allow a copyright owner to retain [all] the rights while giving someone else a right to exercise some of them, whereas an assignment [or copyright transfer] results in a copyright owner losing control over the work.” —Justa
What is a copyright transfer? It is simply a transfer of ownership from one party to another. If you want legal ownership of a photo or other creation which is not yours originally, you can make arrangements. If the creator/photographer is willing, you can can purchase the copyright. This exchange will involve signing a contract for legal proof of the transfer.
Once a transfer takes place, the original owner (photographer) loses all rights in regards the the creations(s) listed in the contract. The new owner gains all rights over the creation(s) and can do whatever he or she wants to with the creation(s) until such time as another copyright transfer takes place.
Some photographers are willing to grant copyright ownership automatically to those who hire/commission them to take photos. Others are willing to sell the copyright(s) for an additional fee while assigning a use license without the extra fee. Some may not assign a use license at all. Others are not willing to part with ownership at all. It’s entirely up to the individual photographer how he or she decides to proceed on the topic of copyright transfers.
With a physical object, copyright ownership is concrete. Whomever owns the object owns the copyright. In the days of film photography, owning the negatives (the ability to recreate a photo) was tantamount to owning the copyright. When an original creator, such as a photographer, creates something which is much more easily duplicated (like a digital photo), then copyright ownership becomes more abstract than simply who possesses a physical object. In such cases as these, the photographer can assign a use license to anyone whom he or she chooses.
Let’s use this example to further define the difference between copyright ownership and use license. If you buy a photo print from a photographer, you are buying ownership of a physical product (the print and any extras like framing which might come with) and a use license of the photo printed on the paper/canvas/metal/etc. That use license is transferable to the next person or entity who takes possession of the physical print. However, the photographer still has all the rights to the photograph itself (not the print) and can license the photo to a magazine (assuming you’ve already granted permission via contract/model release if your likeness is present) for example.
A use license grants the licensee permission from the legal owner to do with the creation what the owner allows. There can be all sorts of limits placed on a use license. Common restrictions include time limits to use, number of times the creation can be reproduced, where and when it can be used, whether or not commercial usage is permitted, who can register with the US government (trademark, copyright, etc.), etc.
If you are looking to obtain a use license of a photo, it’s best to find out what your needs are and write up a contract accordingly. Make sure that everything is specific in the contract and that you follow it to the letter.
The consequences for not following your signed contract can be costly for you especially if the owner has filed for copyright registration from the US government. Don’t violate copyright no matter what others think or say (even supervisors).
Also bear in mind that there are commercial use licenses and personal use licenses. They have different statuses in the eyes of the law. A personal license is for personal use only. This may include display in your home or on your personal Facebook account.
A commercial use license is granted to those who intend to use the photo(s) in order to make money or some other form of gain. If you intend to use a photo for advertising, then it’s commercial use. Oftentimes, personal and commercial use licenses are priced differently to reflect the differing rights which the licensee intends to use.
This is common misconception, one I even had myself years ago. Even if you hire someone to take photos of you, you do NOT own the copyright unless your contract says so. Double check your contract to make sure. If there is no mention of ownership transfer at all, then you DO NOT own the copyright.
What rights you do have is over use of your likeness. If you don’t want the photographer to use your likeness for advertising his or her services, then that’s your right. You should also say so upfront. That’s the limit to your rights without further rights being granted.
This is also a common misconception amongst those who are new to commercial photography. The answer is the same as the previous misconception. You DO NOT own the copyright and you CANNOT legally use any photos you commissioned unless the actual legal owner grants you permission to do so. Such permission should be included in your commercial contract. You cannot grant any use licenses without permission.
If you want to use a photo beyond the use granted in your contract, then contact the photographer and request an addendum to your contract. Most photographers are happy to grant additional permissions as needed (perhaps for an additional fee).
This is not true. Use licenses are very specific. A use license to print your photos is most likely a personal use license. Using the same photos for your business is a commercial use license (yes, even if it’s a picture of you). Mixing the two licenses without permission is a copyright violation (possibly a VERY expensive mistake) should you be caught. A personal use license does not cover ANY commercial uses at all. Don’t even think about mixing them.
Also consider that use licenses are usually revoke-able. This is especially true if the legal owner can document your violations.
The law no longer requires using the © symbol for legal protection for anything created after March 1, 1989. A photo is still the intellectual property of the photographer (or transfer recipient) regardless of whether or not the © is present. The same applies for a watermark. Check out this pamphlet issued by the US government on copyright symbol requirement.
This is a common misconception which has gotten many a company/individual/group in trouble. Just because a photographer shared a photo for display purposes on the internet does NOT give you permission to use the photo at will, especially for commercial purposes.
You still must contact the photographer and obtain permission to use the photo(s) in question BEFORE you use them. You had better also hope that the photographer didn’t yet register the photo(s) with the US Copyright Office. Your infringement could cost you up to $150,000 per infraction plus attorney’s fees.
Just because you hired someone to take photos, does not mean that you can do anything you want with them. Since copyright ownership goes to the photographer automatically, you need permission from the owner in order to do anything with those photos. This permission can come in the form of a copyright transfer or a use license. Stepping outside of the permissions granted to you by the owner can result in some hefty financial consequences.
If you want further information on US copyright law, then check out this link where you can download a pdf of the original act in addition to all the updates to the law.
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