A question of rights as a photographer.

[AutumnSangria]

As a photographer who works for or with someone else, do you have any rights to the photos you have taken? Does it make any difference if the equipment you use, is your own?

If no to both queries, then how can you build a portfolio while working with or for someone else, when you have no entitlement to the photos that you have taken?

There is a business venture I am considering, if I do no become a solely run business, but I have no idea if I have any rights where this venture is concerned.

If you do not have the answers, or even if you do, would you also include any resources I could go over? I have searched online, and I get bias opinions depending on the source. They're all independent to the companies involved, and none of them have set rights and regulations.

[Aaagogo]

i think this line you said yourself answers your own qn

They're all independent to the companies involved, and none of them have set rights and regulations.

I've been researching on that topic too and I believe IMHO that it boils down to what was agreed on before the images are produced.

since its a demand and supply thing, there is a point where both parties can reach some agreements where both parties are satisfied with the terms and conditions agreed.

[bieber]

Strictly speaking, if it's work made for hire, the employer, I think, holds copyright, although it gets a little more murky if you're using your own equipment. My advice is to avoid legal confusion altogether and plainly spell out who gets what rights in writing.

[Nyobie]

I believe copyrights belong to the actual person who is responsible for CREATING the images. I believe you would have to sign your rights over to the principal in order for them to be able to use your work even if you're there working as a second.

I would think that it would be extremely difficult to enforce the copyright laws if this weren't the case so unless the person who hired you made you sign anything that gives them exclusive rights and releases you of any and all rights to your work, I would think that you are technically still the owner. Also, it really depends on what they had you sign if you did sign something as to whether or not you're turning over usage rights or full rights. I think there's a difference.

[AutumnSangria]

Thank you all so much for responding!

You've all helped a great deal, and have left me with more to think about.

I know that before I agree to anything, I will most certainly get it in writing, signed and copied.

I just wanted to know what others thought about it, and if anyone had an experience with a situation like the one I gave.

Thank you again!

[Alexajlex]

I second what Nyobie said.

In the US copyright assignment can only be done in writing .
Whoever took the photo is the copyright holder unless they sign away that right.
I can't speak about Canada since things are a bit different there (when it comes to copyright). I was once told that the copyright holder is the subject not the photographer in Canada!!!

[P51Mstg]

It works like this:

I own XYZ Photography. If you work for me and your job is "photographer", I own every copyright on every picture you take on MY TIME (when you are on the "job"). You are my employee and taking pictures is your job. I own them. In exchange you get a regular paycheck. Oh yeah as part of your employment agreement, you will sign an agreement to give me all your copyrights (standard practice in business).

If you want to use your equipment, GREAT, it doesn't change what is above. If you use my equipment fine. If you use a pen and sketch pad, I still own "your work".

Hiring you as a full time (part time whatever) photgrapher, I get the copyrights.

Now I can make an agreement with you on how you can use the pictures, maybe you can sell some, use them for your portfolio, etc. I may want your $$$$ to allow you to use them (you pay me).


ME--> I need to sell the pictures, collect the money, pay the bills, etc. Legal problems are mine, rights of publicity, releases, etc......... I can't afford to give everything away (copyrights, ect) and pay the bills (and your paycheck) too.

The EMPLOYEE CONCEPT (as above) is different than what happens when XYZ Photography is hired to shoot a wedding. Then XYZ will own the rights to the wedding pictures and sell them to the "happy" couple. If the happy couple can get XYZ to agree to contract away their copyrights, they can do it.

Problems arise when you don't have a clear agreement. "Come and work with me and I'll let you keep the copyrights on the pictures, after I use them for a while and I'll get you into the big sporting event with media credentials" Oh yeah, you don't get paid either and you carry all my gear along with yours..... That is a formula for disaster. SO if you are working with someone, you may or maynot have copyrights, DEPENDS ON WHAT YOU AGREE TO AND GET IT IN WRITING.

In short, if you want to keep your copyrights, get into the OWNING the business and not WORKING there (when you own, meals don't seem to come on a regular 3 times a day)

Mark H

PS: I was a lawyer for 17 years before I started the picture taking stuff. I may not be an expert on copyright law, but I do understand it and what is above it pretty much about 99.9% right. NOTE THIS IS USA ONLY I don't know about the rest of the world, but I do read the newspaper

[IndyJeff]

If you use a pen and sketch pad, I still own "your work".


That's funny, really, really funny.

[TTk]

I have one (1) photographer who works for me and ALL PHOTOS taken by him, he has full copyright. He,s the one taking the photos come rain or shine therefore should have full copyright plus a monthy paycheck..

[Nyobie]

It seems what Mark H stated follows with what I posted earlier - what's important is what goes in writing which releases you of copyright ownership. In th US, everything is done in written despite verbal contacts being perfectly legal, written contracts are much eaiser to prove.

What I was wondering while reading Mark H's post is if a copyright owner needs to get express written permission from the happy bride and groom, to post their wedding photos for profit on a web site. I read somewhere in a photography business book that there are instances where you should obtain written permission to sell photos of a person - to a magazine or other publications but I was thinking... Does this concept apply to sales of the photos to the happy couple's friends and family even if a person owns the copyrights to the work itself? It's unlikely a happy couple would turn the law against the photographer they hired, but I was wondering if some extremist out there might take the law to the extent of what it wasn't quite intended to be.

[Alexajlex]

It seems what Mark H stated follows with what I posted earlier - what's important is what goes in writing which releases you of copyright ownership. In th US, everything is done in written despite verbal contacts being perfectly legal, written contracts are much eaiser to prove.

What I was wondering while reading Mark H's post is if a copyright owner needs to get express written permission from the happy bride and groom, to post their wedding photos for profit on a web site. I read somewhere in a photography business book that there are instances where you should obtain written permission to sell photos of a person - to a magazine or other publications but I was thinking... Does this concept apply to sales of the photos to the happy couple's friends and family even if a person owns the copyrights to the work itself? It's unlikely a happy couple would turn the law against the photographer they hired, but I was wondering if some extremist out there might take the law to the extent of what it wasn't quite intended to be.

The key element is that if you are working on a selling prints business model you are going to have the pricing chart and a line such as: "Prints are available at the following rates:" in your contract.

So you stated that you are selling prints. The BG signed. Offer and acceptance = contract.
If there are any issues with you selling prints (and I'm talking in the general form of selling prints to relatives) then those will come up when the BG read/sign the contract.

This leads me to believe that it is a good idea to add the pricing chart and the fact that you sell prints even if you don't at the moment (insurance for the future).
Most wedding contracts have a line in there that says that the photog can use the pics for advertising online and in print (such as a magazine).
You could not sell them to a magazine and make a profit, but if a magazine wanted to print them with proper credit and contact information (and you agreed to it) that would be covered by the advertising line.

If issues arise at this point and they don't want you to sell prints and your business model is centered towards selling prints then you have some options:
1) Change business model (for most this is not going to happen just from this encounter).
2) Charge a la carte and take the average you would make on a wedding from print sales and add that on to the wedding package. Explain to the BG that you agree to not sell pints and you have to charge a fee to cover the lost profits.
3) Refer the BG to another photog who works on the business model that the BG are looking for.

The way I see it selling it to a magazine would be something that you need to have spelled out as most wedding contracts do not have this in it (there are some that are bold and do it and bury it in the boilerplate).

The same thing with TFP/TFPCD agreements. I've seen some where the "use for any purpose including commercial, resale, etc" is included in the agreement.
Those tend to be one sided towards the benefit of the photog since the fair ones say that the the photog+model can use the pics for advertising and cannot sell them commercially to a magazine (or whatever) unless a new agreement is signed to cover compensation.

P.S. I'm not a lawyer but because I've read a few things on the Internet I feel that you should listen to me ;)

[asysin2leads]

One of the phrases that gets thrown around is "Intellectual Property." If you are compensated for your creative work (websites, photography, graphic design or whatever) the copyright belongs to whomever is paying you. If you want to branch out on your own and utilize your skills to pad your bank account, great. Then you own the copyright. There is a gray area that a friend of mine has run into. He works for a company designing websites (high end ones, too). They allowed him to put their software on his laptop to work from home. Sounds great, right. Well, he designed some sites for churches and charged very little. Well, he used the software that his company paid for and allowed him to use. The license is in their name. The company heard about his extra-curricular work and demanded he turn over all profits from his work. According to them, he used their software illegally.

[P51Mstg]

Nyobie raises an interesting point (One I never thought of) (correct me if I'm wrong)

1. Can you post pics of a wedding on the web and sell them to a 3rd party (call it wedding guests) without special permisson from the currently happy couple?

Over all I'd say NO.

Why? You can post them on your site without their permission to promote your own business. I see no problem there.

However, here we get into "right of publicity". You cannot sell someone else's image without their permission. So unless the Bride and Groom give you permission to sell them (even to their friends) you can't do it without their specific permission.

2. Can you sell them to a magazine?

I'd say yes on this one, as LONG AS THEY ARE used for "editorial uses" then right of publicity doesn't apply (we are talking common folk here not Brad and Jen). So if they want to write a story about weddings (or something else) and use your shots, its fine.

BUT you can't sell them for a "commercial use" which is to use as an Ad in the magazine, either sold to the magazine or to a company to use in its advertisments (wedding gown ads, Tux ads, flower company ads, etc). Again right of publicity applies here.

But, what about the shot of the limo leaving the church, with everyone happy and you can't really see anyone's face? Time to sell it to "Uncle Ben" for their wedding rice advertisement. That you can do.

Now Alexajlex Really hit it and explained it well in his 3 numbered points. As far as pricing goes.

I think it may not be a bad idea to try and sell some pictures to the crowd, there are always relatives that want some. Maybe you can sit down with the Bride (the Groom doesn't care, when I got married I never even looked at the pics until we got divorced and we split them up) and make up a wedding book of 20 or so pictures to sell. That would be cool. (of course you need a release too from the BG). Also you could make it an extra "feature" of your services that you make a book.

Mark H

[sfaust]

I believe copyrights belong to the actual person who is responsible for CREATING the images. I believe you would have to sign your rights over to the principal in order for them to be able to use your work even if you're there working as a second.

In the US with regard to photography, you are correct. Unless you sign something to the contrary, the photographer owns the images regardless of who is paying his salary. See below...

It works like this:

I own XYZ Photography. If you work for me and your job is "photographer", I own every copyright on every picture you take on MY TIME (when you are on the "job"). You are my employee and taking pictures is your job. I own them. In exchange you get a regular paycheck. Oh yeah as part of your employment agreement, you will sign an agreement to give me all your copyrights (standard practice in business).g away (copyrights, ect) and pay the bills (and your paycheck) too.

Mark, this maybe correct for you since you state you have them sign an agreement at the time of employment. Smart move. In most studios, this isn't the case from what I've been exposed to. Most don't have any formal contracts at all. See below, or check section 101 of the US Copyright Law, supreme court case CCNV v Reid, etc.

One of the phrases that gets thrown around is "Intellectual Property." If you are compensated for your creative work (websites, photography, graphic design or whatever) the copyright belongs to whomever is paying you.

Also incorrect when referred to photography. In the US, the photographer owns the copyright no matter who is paying his salary UNLESS, there is a written agreement prior to the images being taken. Photography is excluded from the work for hire categories, something I found out recently, so the work for hire issue doesn't exist for photographers. Photography has be explicitly excluded by the Senate and House, and is not listed in the 9 enumerated categories in the § 101 list of subject matters permitting a work-for-hire agreement with independent contractors. So there has to be a written agreement transferring copyright, or the original photographer owns the copyright.

I do think there should always be an agreement between both parties in a photography studio where you have two shooters. But IMO, it shouldn't be a copyright transfer, which is very unfair to the employee photographer, and even the mention of 'work for hire' or 'copyright transfer' will create a lot of ill will with experienced photographers.

I generally structure such an agreement so that the studio owner (me) gets the rights to sell the images as he sees fit. To the client, magazines, whatever. They did the marketing to get client, did the pre-sales, pre-production, production, post, etc, they are due that much. But, I leave the copyright with the original photographer.

The employee, assistant, second shooter, etc, grants the rights to the studio as above, in perpetuity. They also sign a non-compete contract that they won't sell the images in competitive markets against the studio. But they are free to use the image as they see fit otherwise, and they still retain the copyright. IMO, there is no reason the employee can't benefit from their work as long as it doesn't compete with the studio.

If they are stripped of their copyright, then they should be paid top dollar. Should we use the 10X rule kicked around frequently as a basis? :)

The OP is in Canada. This changes everything. I am not that familiar with Canadian law, but its my understanding based on a few people that are in the know, who commented that work for hire is more prevalent in Canada, and it was their understanding that the studio owner would automatically own the copyright. Definitely wise to check.

In either case, a well drafted agreement between both parties as to what rights are granted, and who owns the copyright will resolve any argument no matter what the law states. So I would advise to get it in writing in all cases.

Nyobie raises an interesting point (One I never thought of) (correct me if I'm wrong)

However, here we get into "right of publicity". You cannot sell someone else's image without their permission. So unless the Bride and Groom give you permission to sell them (even to their friends) you can't do it without their specific permission.


If this was the case, you could only sell images of the B&G, and not the best man giving his toast, close ups of the guests crying in the front row, and so on. None of them gave permission, so the same would apply. However, I don't know how this would be interpreted within the law, since its such a common occurrence. I don't think 99.9% of the photographers get permission from all the guests that are featured in an image, in order to sell that image to others, be it the B&G themselves, their parents, relatives, or other guests. Its a gray area that hasn't been contested, or isn't contested enough to matter.


2. Can you sell them to a magazine?

I'd say yes on this one, as LONG AS THEY ARE used for "editorial uses" then right of publicity doesn't apply (we are talking common folk here not Brad and Jen). So if they want to write a story about weddings (or something else) and use your shots, its fine.

It's almost the reverse here when it comes to celebs. Ie, you can take a crotch shot of Brittany or Paris getting out of a car and publish it (and make $30K for the licensing rights on the image), but try that will Ms Smith down the street and watch what happens. Since Brittany and Paris are considered public figures, they have less rights than Ms Smith.

I would be careful using images of anyone from a wedding without permission. In far too many magazines, there is a lot of commerce that goes on in the fringes. Ie, an editorial stories that blend in marketing plugs could easily be considered a commercial use. Its easier to ask permission, than pay $350 an hour defending why you didn't need to because bridezilla didn't like the image used in the editorial.

[sfaust]

Here is a reference to help understand the issue with the nine categories and how it relates to 'work for hire'. It cost one company $500K to learn what seems obvious as a work for hire, isn't because it doesn't fall under the 9 categories in 101. Mass Law - work for hire trap. (http://www.masslawblog.com/?p=93). Its not as cut and dried as we would all like it to be.