Determining who owns the copyright to a photograph can be complicated, as there are many factors to consider. In general, the photographer who took the picture owns the copyright by default, but there are some exceptions. In this article, we’ll break down copyright ownership for different scenarios.
The Photographer Owns the Copyright by Default
Under the Copyright Act, the photographer who presses the shutter on the camera owns the copyright to the photograph by default. This applies both to professional photographers as well as everyday photographers using their smartphones or point-and-shoot cameras.
The copyright belongs to the photographer regardless of whether the photo is artistic in nature or just a casual snapshot. Simply by taking a photograph, the photographer gains exclusive rights to reproduce, distribute, publicly display, and create derivative works from that image.
There are, however, some exceptions to this default rule that can transfer copyright ownership to another party. These include works made for hire, collective works, and joint works.
Works Made for Hire
If a photographer takes pictures while an employee as part of their job, the copyright belongs to the employer, not the photographer. Basically, any photos taken within the scope of employment duties are considered “works made for hire.”
Common examples include:
- A staff photographer at a newspaper taking photos to accompany news articles.
- A wedding photographer employed by a wedding photography studio.
- A photographer working as an in-house marketing photographer for a brand.
In these cases, the employer holds the copyrights. The employment agreement or contract should specify who owns the rights to photos taken.
Collective Works
A collective work is a collection of different pieces, such as a book, newspaper, magazine, or album. The individual creators still own rights to their specific contributions, but the publisher owns the copyright on the collection as a whole.
For example, a travel photographer may license an image to a magazine for use in an article. The photographer still retains rights to the image itself, but the publisher owns the overall copyright on the compiled magazine issue.
Joint Works
A joint work refers to creative collaborations where two or more people contribute to a final work. This could include a photographer and stylist collaborating on a photo shoot.
Joint works have two or more co-owners of the copyright. The photographers and any other contributors are co-owners with equal rights, unless there is an agreement otherwise.
When People Other Than the Photographer May Own Copyright
While the photographer generally owns the copyright by default, there are some specific cases where the copyright may be transferred to another person or company:
Work for Hire Agreements
If a photographer takes photos specifically as a work made for hire for a client, then the client owns the copyright. There must be a written agreement stating that the photos are a work for hire and the client owns the rights.
Common examples include:
- Real estate photography for a property developer.
- Product photography ecommerce websites.
- Headshots and branding photos for businesses.
The client essentially hires the photographer to take photos on their behalf and owns the results.
Photos Commissioned by Governments
For photographs commissioned by the U.S. government, the government obtains ownership of the copyright by default, unless otherwise agreed to in writing. For example, photos taken by the military’s photographers or for other government purposes may belong to the government.
Explicit, Written Copyright Transfer
A photographer can agree to transfer their copyright ownership through a written and signed agreement. For example, many freelance photographers transfer rights to a publisher or stock photo agency through a copyright transfer contract.
It should clearly state that the photographer is transferring copyright to the other party. This transfer of ownership can be permanent or temporary, such as a limited-term usage license.
Inheritance
Copyrights can be passed down to heirs after a photographer’s death. The photographer’s estate typically controls the copyrights for a period of 70 years after death.
At that point, the photos enter the public domain and anyone can freely use them without permission.
When People Are Featured in Photos
Another common copyright scenario involves photographs with people in them. If you take a photo of someone, do they have copyright claims?
The short answer is no – you as the photographer still own the copyright on the overall image. However, the person featured has separate personality and privacy rights that may limit usage of the photo.
Personality Rights
Personality rights refer to someone’s right to control the commercial use of their name, image, likeness, or other identifiable aspects of one’s persona. These rights vary based on jurisdiction but often last after death.
For example, you couldn’t commercially use a photograph of someone to promote your business without their consent. That would violate their personality rights.
Model Releases
Photographers often have people sign model releases to obtain their permission to use photos of them. This waives a model’s personality rights for agreed-upon usage.
Model releases don’t transfer copyright ownership, which remains with the photographer. But they do allow unrestricted usage that would otherwise violate someone’s personality rights.
Privacy Rights
Even if taken in public, photos of identifiable people may raise privacy concerns that limit usage. Examples include voyeuristic, defamatory, or otherwise offensive photos.
Newsworthy and incidental street photos typically avoid privacy issues. But using photos out of context can potentially violate someone’s privacy rights.
In practical terms, always ask permission before photographing someone up close. And consider privacy when publishing identifiable photos of non-public figures.
Registering Photo Copyright
In the U.S., copyright exists automatically without registration. However, registering with the U.S. Copyright Office provides important legal benefits:
- You can file infringement lawsuits.
- You can claim statutory damages and attorney’s fees.
- It establishes a public record of ownership.
Registration involves submitting an application, copies of your photos, and a fee. You can register individual images or groups of published photos.
Ideally, register important photos you want to protect soon after publication. You must register before suing for infringement.
Using Copyrighted Photos
If you don’t own the copyright on a photograph, you generally need permission to use it. There are some exceptions for things like commentary, criticism, news reporting, and other “fair use” purposes.
But in most cases, you need to either:
- Obtain a usage license or permission from the copyright holder.
- Only use photos in the public domain.
Stock photo sites provide a convenient way to license images for specific usages. Wikimedia Commons has many public domain images.
Unauthorized usage of a copyrighted photo can lead to civil and criminal penalties. Always determine and respect copyright ownership before using an image.
What Constitutes Photo Copyright Infringement?
Copyright is infringed when someone violates the photographer’s exclusive rights without proper authorization. Specific examples of how photos are commonly infringed include:
- Reproducing/copying photos without permission.
- Distributing or selling unauthorized copies.
- Publicly displaying photos in venues like websites, presentations, etc.
- Modifying, cropping, or remixing images to create derivative works.
To prove infringement, the photographer must show evidence of:
- Valid copyright ownership of the images.
- The alleged infringer copied protected elements of the work.
- The copying was “substantial” enough to matter.
Substantial similarity doesn’t require an exact duplicate. But minor cropping or alterations may be considered fair use.
Penalties for Photo Copyright Infringement
Someone found liable for civil copyright infringement can face significant financial penalties:
- Actual damages suffered by the photographer.
- Disgorgement of the infringer’s profits.
- Statutory damages up to $150,000 per infringed work.
- Court costs and attorney fees.
Willful infringement for commercial gain can lead to criminal fines and imprisonment. Penalties are severe because copyright infringement is a form of theft.
How to Avoid Infringement
To avoid infringing and stay on the right side of copyright law:
- Don’t use any photo you didn’t take or own the rights to.
- Always get permission in writing where possible.
- Only use watermarked preview images for identification.
- Stay away from piracy sites offering free downloads.
- Don’t try to remove watermarks or other copyright management.
Respecting creators’ rights maintains an ethical creative ecosystem. Follow licensing terms strictly and leverage legitimate sources like stock photo sites.
Fair Use of Copyrighted Photos
Fair use is an exception to copyright law that allows limited use of copyrighted material without permission in certain situations, such as:
- Commentary and criticism
- Parody
- Educational uses
- Incidental use (de minimis)
- Transformative new works
Fair use is determined by four main factors:
- The purpose and character of use (commercial vs. non-profit).
- The nature of the copyrighted material.
- The amount used.
- Market impact on the original work.
Examples of potential fair use of a photograph include:
- Quoting or embedding a news photo in a blog critique.
- Incidental background use in a video.
- A parody meme making fun of a famous photo.
Fair use can be complex and subjective in practice. It’s not an automatic free pass to use copyrighted photos without permission. But it provides some flexibility in limited situations.
How to Protect Photo Copyrights
Photographers have several options to help protect their copyrights from unauthorized usage:
- Register important photos with the U.S. Copyright Office.
- Publish photos with visible watermarks.
- Embed metadata like copyright notices.
- Only share low-res proofs and samples.
- File DMCA takedown notices for infringement.
- Use traceable image tracking services.
Registering provides enhanced legal remedies. Watermarks, metadata and visible ownership help deter infringement and prove ownership if needed. Using traceable services can monitor image usage across the web.
It’s also wise to maintain records of licensing agreements and model releases where applicable. Consult an attorney for help enforcing rights.
Conclusion
Copyright automatically gives photographers exclusive rights to distribute and use their photos. But situations like work for hire, joint works, and model releases can complicate who ultimately owns rights.
To use copyrighted photos legally, you generally need licenses or permission from the creator. Fair use provides some exceptions for commentary and criticism, but any substantial usage likely requires authorization.
As a photographer, you can better protect your copyrights by registering with the Copyright Office, adding watermarks and metadata, and using services that monitor unauthorized usage. Overall, respecting image copyrights maintains creativity and ethics.