Who Owns Copyright in my Brand Photos?
Whether you’re a brand photographer, commercial photographer, or someone who is hiring a photographer to take brand photos of them or their products for marketing or promotional purposes, it’s important to understand the basics of copyright for photography. By understanding the copyright rules and protections, you can ensure that the photographer/client relationship is positive and everyone is happy with the photographs and their use in the end.
What is Copyright?
Copyright is a type of intellectual property that gives the owner of the copyright a bundle of rights to publish, use, share, or sell it. Being the owner of copyrights in a work gives you the right to produce or reproduce parts of or all of the work. Put simply, in most cases, you can do whatever you want with the work.
Copyright applies to all original literary, dramatic, musical, and artistic works, performances, sound recordings, and communication signals. The copyright for photography falls under the artistic works category.
Copyright is meant to protect the owner who created the work so that it cannot be copied or otherwise used without permission. In most cases in Canada and the United States, copyrights are granted to the owner at the moment the unique work is created. This means you don’t need to go through any type of special process to be granted these rights.
The key thing to remember here is that the works have to be uniquely created by you in order to gain copyright protection.
Are ideas protected by Copyright?
No! Ideas are NOT protected by copyright law. So if you’re brainstorming ideas with other people, beware!
In order to receive copyright protection, you must actually create the work, or legally speaking make the work “fixed”. So as as a brand photographer or commercial photographer, when you take a photo, you automatically own the copyright to that photo because it is something unique you’ve actually created and made a fixed work. There are a few certain exceptions to copyright protection that we’ll dive into next.
Are there any exceptions to copyright protections for work I’ve created?
As with most things, there are a few key exceptions to be aware of when it comes to copyright protection and copyright for photography.
One exception to copyright protection is employment situations where employment agreements have a specific clause that automatically assigns all copyrights created by an employee to the employer during the course of their employment and while performing their duties. For example, if you are a photographer working as an employee for a company, if this clause is in place, they immediately gain copyright to any photographs you take while carrying out your day-to-day obligations. .
The United States has a ‘work for hire’ doctrine where the employer or person that is commissioning the work, such as an independent contractor, is considered the author and owner of the work UNLESS the contract states otherwise. If you are in the United States, this is why it is so important to address copyright ownership in your contracts if you are a freelancer or independent contractor with the intention of retaining copyright ownership and giving your client a limited license to use it. (We’ll dive more into limited licenses below!). If you are a Canadian photographer who has been hired by a US Based company, it’s important to know about this and read your contract carefully before starting.
If you are a brand photographer or commercial photographer and hire a second photographer to help you with your shoot, you want to ensure that your second shooter agreement assigns copyright to you, the main photographer. That way, you can own the rights to any images you’ve hired the second shooter to take. Then, you can decide whether to keep the copyright or assign it based on the photography contract you have with your client.
How Copyright can be dealt with in Client Contracts
For the purposes of this post, we’re going to assume that none of the exceptions above (employment or work for hire) apply and that you’ve been hired by a client for a limited project, namely to take beautiful brand images for your client. In this case, once you take the image, you are the creator, and therefore, you are the owner of that image.
As the owner of the copyright in the photo in the first instance, you, the photographer generally has two options:
- Retain copyrights in the photos and give your client a limited license to use the photographs for certain purposes.
- Assign copyright in full to your client so they can use the photographs without restriction.
Option 1 - Photographer is the owner of the copyrights, and a limited license is given to client
If you decide to retain copyright in the photo, you will need to grant a usage license to your client so that they can actually use the photographs for their intended purposes. If you are being hired as a photographer to do branding or product photos, it’s likely your client is going to want to have the right to use them for marketing, promotional, and advertising purposes. They will also want to be able to post them on their social media, website, and wherever else they market their business.
This license can give your client the right to use the photographs for commercial purposes and allow them to do this legally. However, it will restrict them from reselling them as stock photos or giving them to third parties for their use and for other economic gain.
Other common photo license restrictions include not allowing any filters or other edits to be made to the photos, so as not to degrade the quality of the photographer’s work. This option seems to be more in line with keeping with industry standards when it comes to brand and commercial photography.
Option 2 - Photographer assigns full copyright to Client
The second option is when, after the photographer has been paid and all other obligations have been fulfilled under the photography contract, the photographer assigns all copyrights to their client. Once you assign copyright to your client, your client is free to do whatever they want with the photos – for the most part.
As a photographer, if you choose to assign copyright in your photos to your client, it would be a good idea to have your client grant you a limited license. This would allow you to use those images for your own marketing and promotional purposes for your photography business and portfolio.
No matter what option you decide to go with, you need to set this out really clearly in your brand photography contract and have this signed before you start any work so your client fully understands the expectations.
A Brand Photography Agreement is Important!
As with everything with your contracts, communication is key! If you are a photographer, be sure to explain this and have it clearly set out in your contract how copyright is dealt with. Be very clear about licenses to ensure that your client will be able to use the photos how they want to and for the reason they hired you in the first place. Brand photos aren’t much use if the client can’t use them for their marketing! This is only one of many important clauses that should be included in your client photography agreement to ensure a great client working relationship.
If you are reading this post because you are hiring a photographer for branding or commercial images, read your contract carefully so you understand what you can and can’t do with the photos you have paid for. If you have any questions about the contract or what the terms mean, reach out to them before you sign their contract and have them explain it clearly so you are both on the same page. If your photographer doesn’t have a contract, by default they are going to be the owner of the copyright, so be very cautious before proceeding!
How Should I Decide Which Copyright Option is Best for my Photography Business?
Now that you understand both copyright for photography options, you may be wondering how to decide which option is best for your photography business.
In commercial photography, it’s pretty standard to keep copyright ownership and give your client a license to use the photos for the reasons why they hired you. However there are definitely instances when clients want to outright own their images and do with them what they want. Understanding your clients objectives are key!
If your client is hiring you to shoot a bunch of stock photography images, this would be a situation where you would likely assign copyright in your images to your client. This would then allow them to resell them online and essentially do what they want with them, including reselling, republishing, and distributing as they wish.
Industry standards are always changing as are client expectations, so it’s always good to communicate and understand client expectations before proceeding.
Do I Need to Register Every Photo I Take to Protect my Copyright?
Thank goodness, no! Registering every single photo you take as a photographer wouldn’t leave you much time to actually take photos or much money in your bank account! As mentioned previously, unless you’re subject to an exception, the moment a photograph is taken, the person who took that photo (you, the photographer!) gets the benefit of copyright in that image. You don’t need to register your image with the Canadian Copyright Office or the United States Copyright Office to benefit from copyright protection for your photograph.
However, there are some advantages to doing so. By registering your photos, it creates a record of ownership that you are the original owner of that photo. In the United States, you would need to have this registration to have proof that you are the original owner to be able to file a federal lawsuit if you feel like your copyright is being infringed.
If you want to start a lawsuit in Canada for copyright infringement, you don’t need to register copyright, but it does help provide evidence that you are the original owner of the photo, which might save you a lot of time and legal fees!
If you think your copyright is being infringed upon, filing the registration and talking to a lawyer before starting a claim would be helpful and could save you a lot of time, money, and stress!
Do I Have to Use the © Copyright Symbol to Protect My Photos?
While there is no specific requirement to use the © symbol in order to gain copyright protection, including the © symbol on your photographs makes it very clear to those that view it that you are the creator of the work, even if it is not registered.
However, including this symbol on photographs can take away from the image itself. As a general rule of thumb for photographers, you can leave the © symbol off of your actual images, but can include it on resources or photographs that are easily accessible to the public. For example, if you submit a photo to be used in a newspaper, guest blog post, or article, it would be a good idea to include the symbol as a mark of your ownership.
If you are a brand photographer or commercial photographer, it is a good idea to educate yourself on copyright law, copyright protection, exceptions, and your options. I hope this blog post has helped you feel more confident in your knowledge of this and your rights as a photographer.
Need a lawyer drafted and easy-to-use use Brand Photography Contract for your business?
The next best step to ensure you are protecting your copyright for your photographs is to get a solid brand photography contract in place that you can use with your clients. This Brand Photography Agreement will help you set your own policies and lay them out clearly for your clients so everyone is on the same page before your shoot, including with respect to copyright ownership and associated licenses.. It also includes a Model Release Form which you should be having all subjects of your photos sign before using an images for your marketing or promotional purposes.