Copyright for Photographers: The Ultimate Legal Guide

Copyrights for Photographers: What is a Copyright?

Your photographs are the lifeblood of your business. And every photography business should have an intentional strategy about how to protect and monetize those photographs. There are generally two aspects to that strategy—legal and practical. Legally, photographers generally use two means to protect and monetize their photographs: copyright and licensing. Copyright law provides a bundle of rights that protect creative works fixed in a tangible medium (for you, photographs). The central “copy right” is the ability to prevent others from making, using, or selling copies of your photographs. But, importantly, owning a copyright does NOT ensure that you can use the photograph. Indeed, there may be other legal rights, such as privacy or contractual rights, that can block your use of the photograph.

For example:  If you do not obtain a model release from the subject of your photograph, they may have rights to prevent you from using the photograph. Similarly, if you have contractually agreed not to post a photograph of your client on social media, the fact that you own the copyright in the photograph does not give you the right to do so.

How do You Get a Copyright?

Getting copyrights in your photographs is somewhat automatic, as the copyright in a photograph comes into being the moment the photograph is taken. However, an important consideration for photographers is who owns the copyright. By default, the person that takes the photograph initially owns the copyright. This means that, unless properly addressed, a contract second-shooter or associate photographer
will own the copyrights in the photographs they take. It is thus very important to address ownership of the copyright in any contract with a second-shooter or associate photographer. Please note that there are some nuances to copyright law that are often missed by those inexperienced in copyright law. As such, I generally recommend having an intellectual property attorney review your contracts to ensure copyright ownership—and a several other nuanced issues—are properly addressed.

Benefits of Copyrighting Your Images 

Like with trademarks, there are additional benefits to registering the copyrights in your photographs, such as a public record of ownership and the ability to sue an infringer and receive statutory damages. It also significantly enhances your ability to request third-party platforms, such as Instagram, take down infringing photographs. Registration is done through the U.S. Copyright Office here. That said, it often doesn’t make sense to broadly pursue registration for all your photographs—the hassle and expense of that blanket strategy simply don’t justify the benefits for most photographers.

Rather, copyright registration should generally focus on select high value photographs such as those used in popular publications or for certain commercial purposes. You monetize your copyrights by selling or licensing the right to use your photograph. Generally, the terms of the license are laid out in the client contract and/or a print release. Factors to consider in your copyright licenses include permitted uses, exclusivity, territorial limitations, editing limitations, duration, and whether attribution is required. The structure and specific terms of the license generally hinges on the photography niche and your business strategy.

Do I Need to Include a Copyright Notice with My Work?

A common question among professional photographers is whether to include a copyright notice with their work. Technically, a copyright notice is no longer necessary to obtain copyright protection. But there are benefits to including such a notice, including informing the public that the photograph is protected by copyright, telling them who to contact should they wish to license the photograph, and overcoming an “innocent infringement” defense. As such, I generally recommend photographers include a copyright notice whenever practical to do so. A copyright notice should include the following three things:

1. ©, Copyright, or Copr.
2. The year of publication.
3. The owner’s name (or abbreviation or alternative designation of the owner).

How Do You Handle Unauthorized Use?

Now, there will be times when a client or a third-party uses your professional photographs in an unauthorized manner. In those situations, you generally have the following response options:

1. Contact the unauthorized user directly and request they cease the unauthorized use.
2. Have a licensed attorney send a cease-and-desist letter to the unauthorized user.
3. File a takedown request with the third party that is hosting the content (as an example, Instagram’s form is here).
4. Initiate a proceeding with the Copyright Claims Board (which is scheduled to begin hearing claims by December 27, 2021). More information here.
5. Do nothing. Enforcing your rights can be stressful, time consuming and costly, and strategically deciding not to pursue an infringer is sometimes the wiser choice.

Deciding whether and how to enforce your rights can be difficult. Often it is most helpful to discuss such situations with an intellectual property attorney. And many attorneys will provide a free initial consultation to discuss your options.

In addition to these legal protections, professional photographers should take practical steps to protect their photographs. As indicated at the beginning of this guide, having strong legal protection is only one factor affecting your decision process. For example, what happens if your client uses your photograph in print material even though their license was limited to online use? You may have a strong legal position, but legal enforcement may be costly, time consuming, and bad for your reputation. To avoid such circumstances, professional photographers should always consider what practical strategies they can use to protect their rights.

Practical Strategies to Protect Your Images

1. Limit access to your photographs online, including with password-protected galleries.
2. Use lower resolution images for previews and whenever hi-resolution is not required.
3. Use copyright notices extensively including in metadata, websites, contracts, and watermarks.
4. Align your license terms with what is practical to enforce. For example, if you cannot and will not enforce a no-print limitation in your licenses, remove that limitation and use the broader license as a selling feature.
5. Discuss what uses are, and are not, permitted with your clients (surprise, many clients won’t actually read the license terms in your contract).

Photographer Action Steps:

1. Place copyright notices wherever practical.
2. Review copyright and related license terms in your contracts with an intellectual property attorney.
3. Review your portfolio to determine if there are high value copyrights that should be registered.
4. Review your online presence and print materials to ensure you are not infringing the copyrights of others.
   
   

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