Photo rights and licensing

It’s a complicated mess of spaghetti. Let’s see if we can untangle it a bit.

First, Who owns the photo?

Photos and images are intellectual property. As such, photo ownership starts and almost always stays with the photographer.

“Hiring” a photographer doesn’t change the ownership.

So, what if you hire a photographer? Won’t this mean the photos belong to you?

Actually, no. Even when hiring a photographer for a dedicated photo shoot, the employment is typically a contractor relationship. Therefore the photographer will still be the owner of the resulting photos. The photographer may grant you an unlimited license for these photos, but legal ownership stays with the photographer.

Only if a staffer takes photos on the job, using your equipment, and on paid company time, will you, the employer, be considered the owner of the photos.

Your photo license is for you (not your contractors or the media).

So, as we mentioned earlier, professional photographers never sell a photo. Rather, they grant you permission (license) to use it. When licensing a photo, you do not own it.

You also do not have the right to give the photo to a third party to use. This is a very common misunderstanding. Say you’re an architect, and you paid a photographer to shoot your latest custom home, and you received a very open license to use those photos. A magazine calls and asks if they can use your photos in a story they’re running about you. The answer is a big NO. While you could use those photos in a print ad in said magazine, the magazine becomes the user of the photo when they are using it for their own editorial. So they should be negotiating their own license with the photographer. In the same example, if the builder who constructed your beautiful custom home asks for copies of those photos for his portfolio, the answer is also NO. The photo license is for you and you only.

How you use the photo often affects the price.

By purchasing a license, you are paying to use a photo in a very specific way. The photo’s permissions detail exactly how you can (and can’t) use the photo. Some permissions are very restrictive and are tied to a particular medium (i.e.: one regional magazine ad, one direct mail piece, one video, one television commercial, or a billboard at a single address), a particular time frame, or based on a number of views. Some permissions are for editorial use only (not advertisements). Or, permission may be more general (giving you free rein to use the photo on your website and in any emails you send).

The photo isn’t exclusively yours to use (unless you pay extra).

In most cases, when buying an image from a stock agency, you will be granted non-exclusive rights for that photo. This means that this photo may be legally found on many other sites, billboard, direct mail pieces, or newspaper ads. Some agencies will offer to sell you exclusive rights, or semi-exclusive rights (often based on a geographic region). You definitely pay more for this type of exclusivity.

Stock photography is (usually) a good route to take.

Often, an agency such as Corbis or Getty Images will license rights in batches using a model known as stock photography. The stock photography market is well known, inexpensive, and an efficient method for securing usage rights to a wide variety of photography.

Buying photography from an unknown source can be risky. There is nothing that stops a disreputable “stock” agency from building a website, hosting it offshore, and selling rights to images they do not own.

Likewise, it is dangerous to trust web sources offering “free” stock photography or clip art, as those images may have been shared many times and are, in fact, the intellectual property of someone else.

Keep that receipt…it’s a contract.

A receipt from a stock agency that details permission granted (for consideration) will be a valid contract. That contract should always state how much the owner or agency is being compensated, and which permissions are being granted.

The contract will most likely be restricted by medium (website, email, direct mail, brochure), resolution, instance count (website views, brochures printed), or it may require you to list a photo credits or link back to the owner/photographer.

It is prudent to keep detailed records of your photography license purchases. It will be important to produce valid proof of usage if your licensure is ever challenged by the owner of the image.

Protect yourself (and the photographer) with your copyright notice.

When placing a copyright notice at the bottom of a website, you, the website owner, are declaring that you have the rights to display everything on the site. That copyright notice typically also declares to the public  “all rights reserved” — placing others on notice that the owner will defend ownership of that content.

Keep in mind that if you are licensing some content from another owner, it may also be prudent to add a phrase like “Names, images, or likenesses of other companies, products and services are used by permission and are the property of their respective owners.

What to do if you get a nasty letter.

Large stock agencies have legal and technical staff dedicated to sniffing out illegal users of their images. Not to mention sophisticated software which hunts down infringing use of their photography. The technology gets better all the time, and the legal precedence is established.

If you receive a demand for payment, or a “cease and desist” letter from a copyright owner:

1. Consider the source. If the letter is not from one of the well-known stock agencies, be aware that it could be a scam.

2. Clear the air. You can quickly set things right if you can produce your proof of license and show that you are using the photo within the agreed-upon terms.

3. Employ damage control. If you are caught using a photo without proper license, consult your attorney.  Your attorney will be able to help determine that the “copyright owner” is the legitimate owner or agent of the copyrighted content. Depending on the circumstances, your attorney may be able to reduce the demanded payment. You may also save money by electing to pay the fine outright. But, remember, the fee is not a license. Once the fee is paid, make sure to license the image properly or cease usage.

Finally, archive your assets.

It can be difficult to track purchased imagery and supporting documentation together, all in one place. If you are interested in a cloud-based, workgroup- friendly solution to this problem, ask us about asset archiving solutions.