HOW DOES COPYRIGHT LAW APPLY TO OUR PHOTOSHOOTS?
Copyright law is complex and straight off the bat I need to disclose that I am not a lawyer. As with anything that is subject to legalities, its study can be lengthy, and understanding the many subject intricacies can be extremely challenging. But that’s why we have lawyers! I’m going to attempt to tackle this the best that I can in this post, but due to the depth of this subject, I can only scratch the surface at best. So, I’m going to attempt to keep it relatively simple and focus solely on how copyright law affects our business and our clients during a photoshoot. If you are a photographer or a client of another photographer then I suggest researching how copyright applies to your own business rather than relying on just what I include here, as my intention is to write about the subject as it applies to our own business rather than other businesses.
Are our photographs protected by copyright law?
Shortly after the invention of the camera, the U.S. Supreme Court held that photographs contained human authorship and as such should be protected by copyright law. This has been revisited and addressed many times over the years, wherein numerous courts have consistently explained and affirmed the creative elements that result in photographs being protectable. As such most photographs meet copyright law’s low threshold criteria of originality.
However, copyright law does not protect everything. For instance, ideas, and concepts are not covered by copyright, but it does cover the creative choices a photographer may make when capturing an image. Courts have also recognized a number of protectable photographic elements that include the lighting setup, how a subject may be directed to pose, how a human subject may be directed to dress, how makeup is applied, the overall scene used in a photograph, the camera angles used to produce an image as well as other compositional and directional decisions made in order to express and convey ideas, stories, feelings, and moments in the resulting photographs. I find it personally surprising just how many photographic elements can be protected by copyright.
Following a photo shoot, who owns the copyright to the images we create?
Generally, (yes, straight from the get-go I’m being a little careful here as in law there are always exceptions) the Copyright Act recognizes us photographers as being the author(s) of the work and as such owning the copyright. The exception to this is where the photographs are taken as part of a work-for-hire relationship, I.e., where images are created by employees as part of their job or a working relationship where both the client and photographer agree in writing that the project constitutes a work-for-hire relationship. In this form of business relationship, the client owns the copyright.
We do not, and never will, enter into a work-for-hire relationship.
To avoid confusion over ownership issues, prior to each photoshoot we will provide a written proposal that includes the following text:
“Our agreement is one of shared copyright. True Images Photography retains the intellectual property rights associated with all photography. If you wish to own all aspects of the imagery outright, then a price can be provided. In all honesty, it is not cost-effective for you to do that as you can use all images in perpetuity anyway, it’s just that we do not permit you to resell them or transfer them to a third party.
To summarize:
Any usage of the images by a third party, including but not limited to, magazines, newspapers, marketing companies etc., is strictly prohibited unless approved in writing by us. The photographs may not be sold or reproduced without the express written permission of Aspire Media LLC.
And here’s the legal stuff:
True Images Photography shall own the copyright to all images created and following the six-month post-delivery period, we have the exclusive right to make reproductions for, including but not limited to, marketing materials, portfolio entries, sample products, editorial submissions, and use, or for display within or on our website and/or studio. If we desire to make other uses, we shall not do so without first obtaining your written permission. It is understood that any duplication or alteration of original images is strictly prohibited {Copyright Law Title 17, Appendix V. Additional Provisions of the Digital Millennium Copyright Act 2005, Section 102} without our written permission.”
What does all this stuff mean?
Since we create the images, we in turn retain the intellectual property rights. If should wish to purchase the copyright from us, then we can negotiate with you to arrive at a fair per-image price. I don’t recommend you do that though as we are granting you a license to use your images in perpetuity anyway. This means that you can use the images within your business for as long as you wish without any restrictions. To be honest, I would rather you invest that money in your business to produce new products, which of course we could shoot further down the line. To me that seems far more sensible than wasting money on purchasing a needless copyright, which is a little like buying a vanity license plate for your car, it really doesn’t help you in any way. Personally, I recommend you save your money.
You can use your images for advertising, website publication, social media, posters, brochures, etc. In other words, you paid for them, so you are free to use them as you wish. The only restriction that we place on you is that you cannot resell them or transfer them to a third party. I’m not going to go too far into this, but I invite you to refer to our next post “How do we license our images?” for an explanation of this. In fact, you can access it here. I’m trying to keep this as simple as possible, so I decided to divide copyright and licensing into two separate posts.
The images we create for you, or any other client are for your marketing, so we are not going to steal your thunder and publish them on social media or anywhere else before you have had an opportunity to publish them yourselves. After a minimum period of 6 months, we reserve the right to publish them on our social media channels. Please rest assured that if we do that, we will tag you as well. We may also use one or more images within one of our website portfolios. That is all we are likely to use the images for, but if by any chance we dream up some other usage that appeals to us then we will let you know and only pursue it if and when we receive your written permission.
All images are edited by us prior to transferring them to you. If you spot any issues, even after the final review, feel free to reach out to us and we will address them without argument. We prefer this to our images being edited by anyone other than us. This is not because we are control freaks but simply because we wish to dictate the quality of the images that leave our business. Yes, we know that not all photographers do that, some even leave the editing to their customer or client, but to us that is laziness. We do not do that; quality is our business and without it, we will not stay in business very long.
What are our rights as photographers?
Now that you understand that the photographer retains copyright (in a non-work-for-hire-relationship) then our automatic rights are:
The right to reproduce the images.
The right to distribute the images.
The right to create derivative works of the images.
The right to publicly display the images.
We have no reason to reproduce your images, except on our website or in our social media channels. We have no reason to distribute your images, create derivative works of them, or publicly display your images. That’s why we supply them to you with a license to use them in perpetuity. They are yours to publicly display, we have no interest in doing that.
To be protected by law, does a photograph require a watermark, metadata, or copyright notice?
We do not have to include any copyright management Information in the image metadata, watermarks, or any other copyright notice for the image to be protected by copyright law. Having said that, we actually will include copyright management Information in the image metadata, but we will remove all watermarks from our images prior to final delivery, and we will not include any other copyright information on the images. Those images are for your use, not for us to market our business.
As already mentioned, all our photographs are automatically protected once they meet the criteria for copyright protection. By including copyright management Information in the image metadata, it puts others on notice of the fact that we are the copyright owner and who they should contact to obtain licenses or permissions to use the photograph. But should anyone else contact us for that permission, it would not be granted without your express permission.
In Summary
I hope this post answers any questions that you may have regarding copyright when working with us. As already mentioned above, there is a lot of common ground when discussing copyright and licensing, so the latter will be covered in my next post “How do we license our images?”. Also as mentioned, I am not a lawyer, this is only my take on the world of copyright protection as it relates to our business with our clients, so take away what you may from this post.
True Images Photography provides professional beverage, food, and product commercial photography that gets your business noticed. Feel free to book a free 30-minute consultation at https://calendly.com/trueimagesphoto/free-consultation.
Do look around the rest of the blog here for more helpful posts, and if you have any questions please reach out. I’m happy to advise. You can also connect with me on LinkedIn where I always answer messages with a detailed reply.