Copyright and Professional Photography

Who owns the rights to a photograph? Many companies and individuals assume that if they have paid a photographer to take a photograph, they can then use the resulting image as they see fit. Thus, photographs are often used for advertising, marketing, editorials, or even in print or online media without obtaining the photographer’s consent. Doing so can lead to legal trouble.

Under U.S. copyright law, ownership of the copyright vests in the creator of the work. That is, photographers and other content creators typically own all rights to their work at the moment of creation. While there are exceptions – such as a “work for hire,” where the photographer is essentially acting as an employee – paying a photographer to take an image does not result in ownership of any rights in the copyright.

In order for a company to successfully claim they own the rights to photos in a ‘work for hire’ situation, the company must either have an assignment of the photo, have a written agreement in certain legally defined areas confirming that the work will be deemed a work for hire, or prove that the photographer was legally an employee at the time the photo was taken. In the latter case, the company usually must prove that it provided the equipment and the workspace to create the photos in question, and that the photographer was paid as an employee rather than a contractor, among other considerations.

More common is for a company to purchase or license the rights to a photograph from a professional photographer. In situations like these, licenses must be carefully negotiated, so that the company can purchase the particular rights they need, while steering clear of unintentional copyright infringement. Photos are often sold by stock photo agencies under a tiered price structure that reflects the different kinds of usage rights that are available. The cheaper tiers of use may not include commercial rights.

Proper negotiations for usage rights can save businesses money in two ways. First, negotiations allow the business to pay only for the rights it needs. If a company foresees the need to use a photo in a wide variety of materials, a broader license may be to its benefit, in order to prevent additional licensing costs down the line. On the other hand, if a company’s needs are more limited in scope–for instance, the photo is needed only for a single use, or a single type of media–then the company may save money by negotiating a one-time or more limited license. Second, obtaining proper photo licenses can save a business both time and money by protecting against copyright infringement suits.

In short, simply buying a copy of a photo, or contracting a photographer to take a photo, does not automatically allow a company to use that photo as they see fit. Before using any photography to represent your organization, it is always a good idea to consult with legal counsel in order to obtain the proper usage rights.