By: Emani Guy and Neena Speer, Esq.
Imagine hiring a photographer to take a picture for your website and thinking that the pictures belong to you. Unfortunately, that is not the case when it comes to photographers and their copyrights. Taking a photo from a photographer without permission is known as copyright infringement under copyright law. Copyright law has changed overtime as the internet and technological accessibility has increased.
U.S. Copyright law, is the exclusive legal right to reproduce, publish, sell, or distribute the matter and form of something.[1] This means that if you were to copy a photograph that you may be guilty of copyright infringement which is a federal crime. Copyright infringement on photographers is a very gray area which is determined on a case by case basis.
Photos are different from products purchased in a store. If you purchase a blanket from the store you can do as you, please with it. However, a photograph is considered someone’s creative works which means that they own the rights to how the photograph is used. Before allowing a photographer to take your pictures it is important to understand the basics behind this.
Process
The most important step between a photographer and client is to first create a photography contract which is legally binding. This kind of contract may include, but is not limited to the duration, and fees required by the job for the client. The contract should eliminate any gray areas that could come about because the terms of the contract are agreed upon between both parties. Before the photographer begins their job, a work for hire (independent contractor) contract should be established. This contract not only protects the photographer, but the client as well. Both parties protect their rights to the idea as well as the photograph. Creating a contract defines the scope of representation between the photographer and client. Therefore, there should be a signed contract where the client establishes that copyrights belong exclusively to them and are not property of the photographer. Once the photographs are taken, the photographer and client can agree, once again in writing and signed by both parties, to transfer the copyright.
Copyrights on Photographs (Wow Point)
So even though you hired a professional photographer to take photographs of your firm’s project, you may not be allowed to actually use the images for everything you think you can? Yes, and it depends is always the right answer here. The reasons that the photographer grants you rights to use the photos in a variety of print and digital applications means that, you still have no rights whatsoever to allow others to use these photos. Because whoever creates the photo owns it!
Important Copyright Cases
It is important to understand the issue of copyrights as it relates to photographers. The questions to ask are:
- What are the rights of photographers?
- Who owns the copyrights to this photo?
- What does the agreement intel?
Cases
Copyright Infringement and Registration
In Andrew Paul Leonard v. Stemtech Health Sciences, Inc., the microphotography expert Andrew Paul Leonard’s bone marrow stem cells photo was stolen and used on the Stemtech website and other marketing materials. The judgment was based on Stemech failing to license the image for the website use because the price Leonard was charging was too high. Leonard gave Stemech ample time to bid by the requests to remove the images from the website, however, Stemech failed to do so. Because of this the court found in favor of Leonard because the defendant violated copyright laws.
- Free Print of the Contract
Questions to ask:
- What exactly does your rights protect?
- Are their limits on your rights as regards to the photograph?
In the case of Reinsdorf v. Skechers, where the photographer Richard Reinsdorf sued Skechers for using his images in certain advertisements beyond the previously agreed license. However, in this situation the suit did not hold in the court. Since the photographs were not copyrighted, the court did not agree to award Reinsdorf with statutory damages. Which means friends, you need to copyright your photos OR you can’t get statutory damages! Whoa!
This area of copyright laws seems to be a gray area in the law. Even though you may pay for the photos, it does not mean you necessarily own them, on the other hand, it can state in the contract that you own part of the photo even after the price. So, please ask questions and read your agreements and have them reviewed by a lawyer before you sign up for a photoshoot with no copyright protections in place.
Disclaimer: This is not legal advice, if you are dealing with copyright issues please contact a law firm of your choice.
[1] https://www.law.cornell.edu/wex/copyright
Legal Perspective to Copyrights
Many potential clients have definitely encountered taking a photo with a professional, and the briefed cases show that when the courts get involved , it always boils down to signed assignment contracts and statutory damages. Well , there is another way I want to illustrate this to you. I usually help clients best understand this through logo ownership lessons.
- LOGO OWNERSHIP is our focus and we wanna drill this down for you. IF YOUR GRAPHIC DESIGNER AIN’T WRITE A CONTRACT GIVING YOU EXCLUSIVE COPYRIGHT RIGHTS TO IT, YOU DON’T OWN IT
- NOT even if you paid them
- NOT even if they work for your company if you didn’t write that into their employee agreement that your company owns it
- NOT if you didn’t obtain the rights to it and try TRADEMARK without the rights. Lying to the examiner is not in your best interests.
- NOT a good idea to build a brand behind a logo you don’t own. All your graphic designer has to do is trademark it for the same think
- NOT a good idea to launch without owning that logo if you want it recognized as the source for your brand.
- NOT just a logo but your entire brand’s future identity, why take chances when you trademark it?
- I BOUGHT A $50 LOGO NOW WHAT?
- Chances are you need to get a new one because you did not get an agreement from them likely saying you owned exclusive rights nor get in a contract.
This same concept is applied to photos and videos and though you never think of this, your photographer usually doesn’t assign you EXCLUSIVE COPYRIGHT RIGHTS
PHOTOGRAPHERS OWN MY PHOTOS?! 😱 what can I do?!
YOU MUST Demand they put it in a signed contract before you book. Ask for exclusive copyright rights over your photos UPFRONT AND SAVE YOURSELF WASTED TIME LATER
Helping folks with protections like trademarks for their business is my fave 🤗
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Disclaimer: This is for informational use only. Not legal advice. An attorney-client relationship is not formed by viewing and receiving information attached to The Neena R. Speer Law Firm LLC’s social media pages @neenarspeerlawfirm. “No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.”
