(I plan on making this a permanent link on my site. Meanwhile, I hope this helps to educate consumers and aspiring photographers. Photogs, please feel free to link to this post.)
With the popularity of digital photography and the recent emergence of hobbyist photographers giving their digital images away with their session fees, it is important to step back and look at who actually owns the images from your photography session. I find a great deal of confusion over this issue. I have had numerous discussions with clients and friends over the years who mistakenly believe that because the image is of their child, that the image itself belongs to them. Sorry, but not true. You created the kid, but someone else created the image.
To put it simply, unless it is set forth in writing to the contrary, all photographers own the copyright to the images they create. If you pay a photographer to take pictures of you or your family, you have commissioned that photographer’s time and talent. The fee is for the services of the photographer to create the images, but not for the images themselves. The work itself belongs to the photographer.
Copyright is a form of protection, authorized by the United States Constitution, giving photographers, artists, authors, musicians, etc. the exclusive right to use and reproduce their works. Not a limited right, an exclusive right. All works created after January 1, 1978 are protected by the Copyright Act. This is a federal law and therefore the same in any state. This is why a legitimate professional photographer reproduces his/her own work and never gives that right to a client. This is an important way for a consumer to distinguish a professional from a hobbyist photographer. Consumers ought to be suspicious of any photographer advertising discs of all the high resolution images from their session (this is not the same as low resolution images, which are typically watermarked and cannot be reproduced in a meaningful way.)
Photographers are protected in much the same way that authors are. If you go to Borders Books and purchase a copy of a Stephen King novel, you are the legal owner of that book. You purchased a physical copy of the work, and that physical copy belongs to you. However, the work itself still belongs to Stephen King. You can buy 10,000 copies of that book, and you will never own the actual work unless Stephen King releases the copyright to you (fat chance of that ever happening!)
Now think of a photograph as a manuscript. The photograph is the author’s manuscript and the author is the photographer. The work belongs to the creator unless that copyright is given away in writing (which is almost never done.) Same thing could be said of a piece of music: the music is the image and the musician is the photographer. Hopefully, this is starting to make sense.
Asking a photographer to give up the rights to their original work is no different than asking an author or a musician to give up the rights to their original work. So when a hobbyist gives out their digital files with their session and does not release the copyright to you in some way, shape or form, you are both in violation of the United States Copyright Act. Some might try to argue that the release is implied by virtue of handing over the images, but keep in mind that most reputable photo labs will not reproduce a photographer’s work without a copyright release (something to remember when you go to one of those photographers giving away their originals.)
One exception to this law is if a photograph is taken as part of the photographer’s job, such as a photojournalist with a newspaper, whereby the copyright would then belong to the employer. But these exceptions are few and certainly do not apply to private photographers running their own business.
Often times, legitimate professional photographers will sell their high resolution images (and many do, myself included.) In this case, the price will reflect the cost of the time/talent of the photographer, any lost revenue from future sales, and will include a limited right to reproduce that image for personal use only. Any good photographer will retain copyright over their images and will put forth in writing any limited rights extended to a client over those images. It is important for consumers to beware of photographers giving away discs of high resolution images along with their session fees. More often than not, these “photographers” are simply hobbyists who pursue photography in their spare time and are probably not even aware of the fact that they are committing an act of copyright infringement. It is therefore important for all of us to respect both the law and the artist when it comes to photographic images or any creative work, and to help educate others about what copyright law really protects.
Technology has a way of coming into our lives and making things easier and better in many ways. But it’s important to remember that, despite new technology, the laws that pertain to artists and their work remains the same, despite the medium used to create it.