Copyright for Photographers
Disclaimer: I am not a copyright attorney and any legal matters should be discussed with a knowledgeable and licensed attorney. This blog post is to discuss copyright as I have come to understand it from being in the industry since 2005.
Copyright is essential for photographers because it grants them control and protection over their creative work and imperative for photographers to understand as business owners. Copyright benefits photographers by protecting their income: photographers invest time, skill, and often expensive equipment to capture their images. Copyright allows them to control how their photos are used, enabling them to sell licenses or prints and earn a living from their work.
Copyright prevents unauthorized use by inhibiting others from using a photographer's images without permission. This could be anything from using a photo on a website without permission or credit to using it in a commercial advertisement (more on this later). Copyright also provides legal recourse if someone infringes on a photographer's copyright, copyright law allows them to take legal action to recover damages and stop the infringement.
In essence, copyright helps photographers establish ownership of their work and ensure they are fairly compensated for their creativity and effort.
Imagine copyright as a photographer's shield. It protects a photographer’s photos, which are considered their original creations. Generally, you own the copyright to your photos as soon as you take them and they are automatically protected. There's no need for registration (although it has benefits, especially if the image is used outside of agreed upon usage or via copyright infringement).
Copyright grants you exclusive control over your photos. This means you can decide how they're used:
Reproducing them (making copies)
Displaying them publicly (online, in print, on a billboard and in broadcast media)
Distributing them (selling prints or licenses)
Creating derivative works (for example: editing or using them in a collage)
One-time print license. Often used by magazines, they will license your image or commission you to create an image or series of images for a one-time print (and online) license for that particular issue. That means, after that one-time print (and depending on your contract with the magazine—often they will ask imagery not to be used for a certain amount of time or to competitors) you are then able to sell the image again as the copyright holder. Whether that is for stock, commercial usage for a city’s destination website, for artwork you print on canvas and sell—remember this is your work. You own the copyright unless you decide otherwise and negotiate in writing as such. It generally also means if that magazine or outlet wants to use that image again for a future issue, they need to pay you for the ability to print that image for another one-time license.
What copyright doesn't protect: Copyright doesn't protect ideas or common scenes. For example, anyone can photograph the Eiffel Tower, but your creative take on it and individual photo (lighting, angle, exposure) is protected.
Fair use is an exception: In some cases, others can use your photos without permission under the concept of "fair use." This might be for criticism, news reporting, or education, but there are limitations.
Work for hire. Work for hire is when a company employs a photographer full-time and provides benefits to photographer as a full-time employee; the photographer then creates work under their clearly defined employment responsibilities for the company as work for hire and the company owns the copyright for all works created. The photographer does not own the imagery nor can negotiate licensing for the created works, as they are owned by the company. Several clients/companies will try to get a photographer to create work for hire, even though they are hiring the photographer as a freelancer. It is extremely important to understand this distinction as a photographer; if the company does not want to hire you on as a full-time employee and provide benefits, you are under no obligation to give them your copyright, provide them exclusivity, or sign away your copyright and licensing without compensation.
Registration of copyright. This is a fairly easy process but does require payment for each photo registered. If photographing something you think might be infringed upon, register your image through the US Copyright office at: https://eservice.eco.loc.gov You will need to create an account and pay fees for each photo or batch of photos you register. However, this can be extremely valuable in the event that your image is used inappropriately and you are able to show registration of copyright.
Watermarking your photos. On several occasions, I have delivered unretouched images for clients to preview before we send to the retoucher for post-processing. I highly recommend watermarking anything that is not finished; we have had clients who screenshot imagery and use the unfinished product on social, websites, and even print. A watermark helps to prevent this practice as they are unable to use the image they deem “good enough” and lifting from preview galleries to use outside of usage.
Copyright infringement. If you identify that your image is being used outside of the usage agreement or has been stolen, it may fall under copyright infringement. The fine for copyright infringement can be up to $150,000 per image, so it is important to stress to clients how they are able to use their imagery and have them acknowledge their usage licensing agreement. In the event imagery is stolen, a copyright attorney may be the best route to receive compensation for the copyright infringement (of which the attorney will charge for their services or take a percentage of the awarded amount). Infringement cases are typically a case-by-case basis and the damages assessed by the court will be congruent to the offense; an image taken from your website to be used on a personal blog will carry a smaller fine than a full-sized image file delivered to a third party and used in a national ad campaign, for instance.
Remember: Copyright is just the foundation. There are nuances and complexities, so if you have specific questions or deal with valuable work, consider consulting a lawyer specializing in copyright.
Final thoughts. Copyright is an extremely important tool in the business of photography, and understanding the laws and implications is imperative to professional photographers and amateur photographers alike. For legal advice, consult a lawyer who specializes in copyright law. When negotiating contracts, include the usage limitations in clearly defined terms for clients and make sure they understand the parameters to avoid copyright infringement. Several professional associations and agents can also help in explaining copyright, including ASMP (American Association of Media Photographers), PPA (Professional Photographers of America), PSA (Photographic Society of America) and International Federation of Photographic Art (FIAP).
