A word about business, today on Speedlighter.ca. About contracts and rights, specifically. Copyright. I am not a lawyer, but as a photographer, I feel that “copyright” is an important concept.
For most shoots, the photographer retains the copyright of the images. Hire a wedding shooter, for instance, or a commercial photographer, and the small print will invariably say that this shooter “owns” the images.
Why?
Having copyright means the photographer determines what can be done with the work.
If there is no specific agreement to restrict the photographer’s copyright, that copyright rests with the photographer. In some jurisdictions you may need to “do” something to register copyright; in many (like Canada, as I understand it) that is less necessary.
The photographer having copyright enables cheaper pricing in two ways:
- The photographer can potentially re-use the images;
- If the agreement prohibits commercial use by the client or allows use only in a specified geographic area, or for a limited time, then the price can be lower).
This is the case in any commercial shoot (even when you have portraits made at a commercial studio, or, as said, by a wedding photographer).
If, however, the client can determine the use of the photos, that then gives that client de facto copyright over the photos. In that case, no way exists to lower the price by limiting commercial use, say. Another problem is that in that case, the photographer might not be able to show the pictures as part of his or her portfolio. Or even show them to the processing lab for printing. Or even fix them up in Photoshop. Or make a “photographer selection” of good or bad images! So this opens several potential issues, and a detailed contract would have to be drawn up restricting and granting the photographer’s specific rights. Unforeseen situations would make this a rather complex process.
So the complexity goes up and the cost rises. This is why normally, a shoot where the client owns the copyright (and it does happen, of course – as in the case of a “shooter for money”) necessitates the following:
- Client does the post work;
- Detailed agreement as to photographer rights;
- Significantly higher price – normally at least double, often more.
So instead of doing this, it is often easier to put some restriction in an agreement. For instance, in a boudoir shoot it is usual for the photos not to be shared. The copyright still rests with the photographer, but he or she can agree to not share the pictures except under some agreed circumstances (e.g. after permission in writing, or in only certain ways).
Of course this is not legal advice – to get that, go see a lawyer. But it is advice to the effect that you need to think about who owns your images’ copyright, and you need to be explicit about this. Rights exists under the law- they are someone’s – and you might as well be explicitly clear about this. Hiding the issue of who owns what right never solves anything; rather, it sets you up for problems later.
And that is why, as a photographer, you need a written agreement.
Great post on an oft-neglected issue! Thanks.
Copyright is an important issue that affects *every* photographer, professional and amateur. Copyright benefits *all* photographers. Professionals must know about copyright. Amateurs should do themselves a favour and learn the basics.
Notwithstanding the fact that Canada’s Copyright Act will be amended in the near(?) future:
1) When a photographer shoots pictures for themselves, they own the copyright and they are the Author. “Author” is legal term with important meaning, (more info in a moment).
If the photographer then uploads these pictures to someone else’s web site, the photographer may fall victim to the terms of use of that site and they may lose some rights. Read the terms of use!
Just by entering some photo contests, the photographer may lose some copyrights. Read the contest rules!
2) When a *still* photographer is hired by another party to shoot pictures, if there’s nothing indicated *in writing* to the contrary, then that other party automatically owns all copyright and is the Author of the pictures. Read that again.
Canada is one of the few, if not only country that gives default copyright and authorship to the party that hires a *still* photographer.
This is why most professional photographers will state (or should state) in their contract that they are the sole owner of all copyright and they are the Author of the work.
Note 1: this is supposed to change in the future Copyright Act amendments so as to put the photographer as the default copyright owner and Author.
Note 2: if the Copyright Act is amended as previously proposed in the old Bill C-32, then: if there’s nothing indicted in writing to the contrary, the person who takes the picture will be the copyright owner and Author. Sound okay? Any quick thinkers out there will see the potential hazards:
• if a photographer has someone trigger their remote cameras, that person will own the copyright.
• if you hand your camera to someone to take a photo for you, that person will own the copyright.
• at any event, the second photographer will own the copyright to their pictures and not the primary photographer.
3) Only the “Author” of a photo gets Moral Rights. This includes the right to a credit line “where reasonable in the circumstances”. So, never work in exchange for a credit line because that’s already your legal right.
The default position is that the Author is the copyright owner unless proven otherwise.
4) Fair Dealing allows other folks to use your pictures without your permission BUT only under very specific circumstances. Note that major media outlets often get this wrong when they steal pictures from web sites. Most bloggers get this wrong when they steal pictures.
5) If the formerly-proposed amendments get resurrected and passed into law, there will be changes that will affect every professional wedding and portrait photographer.
6) In Canada, there’s no need to register your copyrights. In fact, they discourage you from doing so! Even if you do register, it’s rather pointless because you don’t even submit a copy of the photo(s).
This is the exact opposite of the USA, where copyright registration is easy, cheap and fast, and you do submit small copies of the photos. Registering in the USA has a huge benefit for US photographers.
As Michael mentioned, be aware of your copyrights and don’t give them away for free (except to your mom, of course). Publishers and other businesses will pay for pictures. If a company says “it’s not our policy to pay for photos”, say goodbye and hang up the phone.
Your camera, lenses and computer cost a lot of money. Wouldn’t it be nice to earn enough money from just one photo to buy another lens or two?
Spot on, Warren.
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Great post, Michael.