As a professional photographer, you face many challenges every time you shoot. These can range from technical issues with equipment to facing legal action if someone takes an issue with how a photo gets used.
Both novices and seasoned professionals can come up against these obstacles. It’s therefore essential to equip yourself with the skills to navigate the legalities of a career in photography.
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What is copyright?
Many people have a basic idea of the meaning of copyright as it applies to brands and businesses. In short, you’re not allowed to make a profit using a company or brand’s official name, logo, or recognizable imagery.
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In reality, it can be more complex to enforce copyright laws. Copyright when applied to photography means having ownership of your own work, and the right to use it in other work, as well as to reproduce, sell and display it.
The only instances in which a photographer would not automatically own copyright would be when they are working for a second party, such as a magazine. Or creating work for a collaborative project, for which an agreement around copyright is drawn up and signed.
Copyright applied to photography
When it comes to professional photographers, understanding copyright laws can protect you and your rights from exploitation. This exploitation may be from individuals, or organizations who wish to capitalize on your work and use it for monetary gain.
Any photograph you create automatically belongs to you—legally. Most people, however, don’t know this. They assume that any photo that pops up in an online search is fair game.
For this reason, it’s suggested that you use a copyright tag on the pages of your website, as well as putting a watermark on photos posted online. To take legal action in the case of copyright infringement, you need to have registered copyright. Here, you have guaranteed protection from exploitation.
Working for a private individual
Many professional photographers are employed on a freelance basis as wedding photographers or for family shoots. Legally this means that there is a contract between photographer and client. But as the photographer, you still automatically retain ownership of your work.
This allows the use of photographs to promote your work unless you explicitly relinquish ownership to your clients. Many photographers, however, believe that it’s good practice to communicate openly with clients about how you intend to use the photographs, either in a promotion or for other purposes.
Creative Commons and the public domain
Creative Commons refers to a license that grants people to use a photographer’s work within certain confines. This type of license requires the author or creator to permit the use of their work—explicitly; until they do so, they retain full copyright.
There are varying levels of Creative Commons licenses, which allow a photographer to place restrictions on how their work gets published. Sometimes the work is only for non-commercial purposes or accompanied by attribution to the creator.
The public domain falls under the umbrella of Creative Commons as the most unrestricted type of license. For a photographer to put their work into the public domain, they need to have relinquished copyright completely. These rights are also waived when the creator has been dead for 70 years.
What about privacy?
There are certain rules and regulations in place to protect the privacy of individuals and organizations. But it’s important to do your research, especially if you’re taking photographs for commercial use.
Do not assume that ownership of copyright extends to work that has infringed on the privacy rights of others. The law protecting the photographic subjects comes before your own rights to create and use a photograph.
The short version of privacy laws is that you’re permitted to photograph anyone in a public space, but not in a place where they are reasonably entitled to privacy. For example, in their homes, other private property, or in places that have prohibited photography such as malls or museums.
To do so requires explicit permission, as well as model releases if you intend to use the photos for commercial purposes. The necessity of a model release depends upon your intended use for the work. If you are documenting a news event for a publication (and in a public area), you don’t need the permission of people in the photographs to publish them.
Commercial use: protection for subjects
It’s only when the photo gets used commercially that a model release is legally required. That is, in advertising, to promote a service or business, in films or on book covers.
This is probably one of the most publicized legal issues when it comes to using creative work unethically. There have been many situations when an individual has discovered a photo of themselves in an advert, marketing campaign, or on an item of clothing. Both examples of commercial use and both requiring comprehensive model release agreements.
Privacy laws do differ slightly from country to country, but it’s generally understood that using a person’s likeness for financial gain is a no-no unless you have explicit permission.
Editorial use—the waiver of privacy laws?
On the flip side, we have the realm of editorial use of photos.
Editorial use refers to images used in newspapers or other publications documenting newsworthy events. Not in any way used to market a product or business. Editorial photos may not undergo heavy editing to make them more sensational. They may not be staged and do not require model release agreements. This also extends to buildings, logos, and business names, which would not fall under commercial use unless there is a signed model release form.
Within these regulations, however, there can be ethical quandaries. What if a person in public asks you not to photograph them? You would be within your rights to continue shooting, but your response to someone can also depend on your ethics.
Different places have different social expectations, different individuals have different attitudes, and while the law might be on your side, your sense of integrity might say otherwise.
The interaction between your rights and how you exercise them is something you must navigate with care.