Disclaimer: I’m not a copyright lawyer or any sort of legal expert. This blog is in no way a complete authority on this subject. Please note that I’ll be referring to copyright laws in Australia as that’s where I’m based, but Intellectual Property laws vary around the world so I strongly encourage you to seek expert advice in your country of business. This article is only meant as a general guide and an example of how copyright issues can play out in a photography business.
Your copyright is the source of your power as a creative. Intellectual property (IP) is one of those confusing topics that a lot of new photographers don’t like to learn. I know because I was like that too. Let’s be honest, legal stuff is Boring with a capital B. We’re creatives! Lawyer speak and legal jargon are not our strong points.
Why Copyright Matters
Let me tell you a story.
Way back when I was a photographer’s assistant, I worked for one of the top commercial photographers in Canada. He built an enviable career over decades of hard work and had a reputation for exceptional photography.
One day an ad agency convinced him to give up his right to do the retouching for a campaign he shot. The client wanted to save money. It was a reputable ad agency so he agreed. But the retouching was atrocious. It degraded the quality of his masterful photography and was nowhere near the original vision he had for the final result.
Then it was released to the public. With his name, his reputation attached that work. And there was nothing he could do about it.
“Did so-and-so shoot that campaign? Oh…!” *cringe*
There’s a saying in the photography biz: you’re only as good as your last image.
Needless to say, that was the last time he gave up his rights.
Who Owns Copyright?
In Australia, copyright is automatically assigned to the photographer. There are a few exceptions to this rule, but I’ll cover that in a bit.
It’s important to understand that the photographer is the creator of the image, and DOES NOT need to actually press the shutter to be considered the official photographer and legal copyright holder. If you are the one who directs the creation of an image, you are the photographer even if someone else pushes that button.
Think of it this way: if you said a speech out loud and someone wrote it down for you as you spoke it, you own the IP for your words, not the person who put pen to paper. See what I mean?
When You Don’t Own Copyright
If you’re commissioned to shoot images for personal use such as family, newborn or wedding photography, then under Australian law, the copyright automatically gets assigned to the commissioner, your client. Many photographers make it a condition of service for the client to sign over all copyright to the photographer in a written contract. I would do the same.
There are other laws around if you’re employed by a company. Often, as an employee, your employer owns the IP of everything you create when you work for them on their projects. This doesn’t include your personal projects done on personal time. Employee contracts may differ so it’s good to thoroughly read your employee contract before starting a new job. And remember: you can negotiate the terms.
Usage Right Vs Copyright
So how does a client get to legally use the images they paid for? The photographer grants a usage license.
Usage rights, or a usage license, is the right to use the images as outlined in the license. It usually states where an image can be used, for how long, and in what countries (if applicable). It can even be very specific, such as limiting how many printed versions can be made for a magazine run.
My standard contracts include a usage license for digital use only (web, social media, and digital marketing) in perpetuity. My services are priced to reflect that. Anything non-digital (such as print, tv, outdoor) isn’t covered so my clients would legally need to ask my permission to use them in that way. That’s when I would ask for a fee as compensation for the higher value of those images.
As the copyright holder, you control how your images can be used, where, and for how long. You have the right to edit the images in anyway you like. But the usage rights you grant your client can be limited to omit the ability to retouch them. This protects your reputation against having your images edited against your will and released into the world with your name still attached to it.
Usage Release Forms
People, including models, have their own rights regarding what’s referred to as their likeness. As the subject of a photo, they won’t have copyright to the images, but they own the rights to how they look. That’s why it’s always important to have a written contract, or model release, signed by the model stating that you’re allowed to use their likeness in your photos.
You have rights to your likeness too. That’s why you can argue against having your face, or likeness, being used in a photo without your permission. Basically, if you can be identified, you can object. The exception to that would be in editorial work when you’re photographed in a public space. When you’re in a public space, you’ve given up your expectation of privacy. That’s why newspapers can publish photos of people in public spaces without their permission.
One more thing to note: Likeness is not limited to people. If a particular building or location is private and can be identified in a photo, you may need a location release for commercial use.
When You Might Give Up Your Copyright
There may be times when you’re happy to give up your copyright. When a photo is so specific that it becomes highly unlikely to be used in any other capacity, then you might not care to keep copyright. With simple product shots, the shelf life of those images may only be a few years because packaging changes and those photos will be out of date. It all boils down to the potential value of your images.
As a rule of thumb, it’s still worth negotiating a higher fee for granting copyright because you’re giving up the ability to earn money in the future from the photos you release.
Ultimately, it’s up to every photographer to decide what makes sense for your business in any situation. But undervaluing your copyright, and the worth of your work, can severely cost you and your business in the long run. So make sure you think long and hard about what’s right for you.
To read more about Australian copyright laws, click here.
- C xx
This is the second article in a series of three about copyright for photographers. To read Copyright: How I Lost My Dream Client (With No Regrets) click here.