Who owns the photograph? Well—the simple answer is that the photographer owns the photograph. However, it’s not always simple. As you’ll see, it’s imperative that you and your photographer cover the terms of image usage prior to your photoshoot. Photographers call this a licensing agreement, and any competent photographer should make the licensing terms clear to you in their quotation and contract. Let’s take a quick look at the variables:
The Independent Photographer vs. The Work for Hire Photographer
U.S. copyright law holds that if you hire an independent photographer for your photoshoot, the photographer owns the copyright. Most independent commercial photographers will make it clear to you exactly how you may use their photographs and the fee for that specific usage. However, you’ll want to make sure that their licensing terms match the way you intend to use those photographs.
The independent photographer will typically offer you a license that is either “transferable” or “non-transferable," with a time period and scope of usage for the photographs. In general, architectural photographers will offer you a “non-transferable license” with “no expiration” time, for usage in “all media.” In a nutshell, this means you can use these images however and whenever you choose—however you may not transfer them to a third party. In some cases, your photographer may specify the time period and the media usage. In all cases, the photographer retains copyright unless it is specifically transferred to you in their contract.
A “work for hire” photographer is one who is either your employee, or one who agrees to do your photoshoot on “work for hire” terms. Simply put, this means that the photographer is acting as an actual employee, or a contract employee, and has no legal claim on copyright. The photographs are yours to use and share as you choose, and you own the copyright. Although it’s uncommon today for photographers to accept these terms, “work for hire” contracts still persist in some industries.
But Why Can’t I Share the Photographs?
That’s the million-dollar question—literally. Current U.S. copyright law is decidedly on the side of the copyright holder, and damage awards for infringement are more and more generous. If you’ve hired a photographer and have been granted a “non-transferable” license for their photographs, you simply cannot share the images. If you choose to share them, you’ll open yourself and those with whom you’ve shared images to serious legal liability. It’s that simple.
Your only legal choice is to refer all third parties who want to use the photographs back to your photographer for licensing. Not only is it the right thing to do, but contacting the photographer for licensing at the outset will avoid the possibility of legal action by the photographer. Photographers have a variety of resources at their disposal to discover and prosecute copyright infringement. In short, there’s never been a worse time to share or use photographs without proper licensing.
I Found the Photo Online…
Just because a photograph is online doesn’t mean it’s free for the taking. In fact, using a photograph that you found online and failed license is the surest way to get sued for copyright infringement. If you find an image online that you can’t live without, it’s likely that you can secure licensing for that image with very little effort.
Professional photographers normally embed their copyright information in all of their images. This embedded information is called metadata. Most imaging software (Adobe Photoshop®, Adobe LIghtroom®, etc.) will allow you to view this metadata information and discover who the copyright holder is for any given image. The best photographers will embed where, when and for whom the photograph was taken. They’ll also embed a copyright declaration and their personal contact information. If metadata appears to be missing, simply contact the website owner for information on contacting the photographer directly.
Most high-end photographers use third-party services from companies like Pixsy to discover and pursue copyright infringement. Pixsy’s web spiders crawl millions of web pages every day, and precisely match the results to their clients’ archived images. Once matched, Pixsy contacts the photographer for confirmation of infringement, and then aggressively pursues a licensing fee on behalf of the photographer. If the demand is ignored, one of Pixsy’s retained law firms begins court proceedings against the infringing party. The simple fact is that if you infringe a photograph, there’s no place to hide.
Best Practices for Photographers and the A/E/C Industry
If you haven’t yet concluded that copyright infringement is a bad idea, then I’ve failed. Photographers who don’t enforce copyright hurt themselves, their peers and the industry in general. The same is true of architectural, design, construction and engineering firms that don’t respect a photographer’s copyright—they damage the industry for their peers who do follow the law. I encourage all photography buyers to adopt a corporate policy of respect for copyright--regardless of who owns the photograph.
© 2024 Alan Blakely Photography, All Rights Reserved.
Alan Blakely is an award-winning architectural photographer who shoots for many of America's top architectural firms, builders, designers, developers, magazines and manufacturers. He is also the founder and current director of The Association of Independent Architectural Photographers™, Real Estate Photographers of America & International™ and Aerial Drone Photographers of America™.