Why do photographers retain copyright?

You’ve hired a photographer. You like the results. You have all sorts of ideas about how you want to use the pictures – new things you’ve just thought of. New products you can use them on, new places you can sell them. And then the photographer pops up and says: “No, you can’t do those things under the agreement we have – I own the copyright. We’ll need to negotiate.” And you are angry. Really angry.

Why would any photographer – or any creative – behave like this? How dare they!

It’s a really obvious question. So much so that you’d think there’d be a really obvious answer. There isn’t. It is, as they say, complicated.

Do a search for the answer and you’ll get – interestingly – a lot of results dominated by discussions about wedding photography. Makes some sense, I suppose. It’s the one occasion where private individuals are most likely to commission photography, and it’s the one where the biggest shock arrives when the inevitable question pops up. “It’s MY wedding – what do you mean, I can’t do ANYTHING I like with the photos?”

But before we get into that, note that a) there is a lot of depth and detail involved in issues of rights and permissions and b) what photographers say the reasons are aren’t always entirely rooted in rationality and evidence.

Let’s go.

First, a quick recap on what copyright means. If you buy a teabag, you own it. You have no restrictions on where you can stick it. It’s yours. You can make tea with it, and you can make tea for your friends, if you want. You can sell the tea to other people. It’s just tea.

If you commission photography, you’re doing something very different. You’re commissioning a creative work. And in the age of digital imagery, you’re commissioning an infinitely reusable asset, costing nothing to copy and distribute.

Note that I’m labouring the word ‘commissioning’ here, rather than ‘buying’. You might think you’re buying the services of a photographer. You might also think you’re buying photos. You might arguably be doing the former, but you’re almost certainly not doing the latter.

How’s that then? Well, in order to protect the interests of creators, copyright laws exist. They – and I write about the law in England and Wales here, though similar concepts exist elsewhere – are automatically the holders of rights to use, publish, reproduce or resell the work they produce.

Does that mean that the person who clicks the shutter always holds the copyright? No. In the event of a complex shoot where a photographer prepares, lights, directs and oversees a team to produce an image, allocating an assistant to trigger the taking of the shot doesn’t bestow the assistant with copyright. But that’s a rare and specialist exception.

And if you are employed by someone – on their payroll – to take photos they, not you, will be the copyright holder. Incidentally, a concept called “work for hire” exists in US law which means that even if you are a freelancer, if you sign one of these agreements it will lead to the client claiming copyright over the work. Be very careful about signing one of these if you’re working for a US client.

Exceptions aside, if you take the photo, you automatically own the copyright. That means you can control who uses it, and this is generally done via some sort of licensing agreement. You might license a client to print it in one issue of a magazine, or in a series of books, or without restriction on social media. Or whatever. You might set a time period on the licence. Or not. The point being that you are still controlling the terms of usage.

So, one short answer to the exam question in the title is: photographers retain copyright because it’s theirs.

It’s not much of a satisfactory answer though. The automatic operation of law is one thing; how it all feels is quite another. (And how it feels when it’s personal photography – something like your wedding – only serves to raise emotions further.)

There’s a very natural assumption that the photo should be treated like a teabag. Yours to buy, keep, use as many times as you like, use wherever you like, and to resell if you so choose.

And you can certainly ask your photographer to transfer copyright to you. You can make it a condition of your hiring. But you are very likely to find costs and difficulties arise. So, back to the original question: why do photographers want to retain it? (And the unspoken secondary question: is this a morally ok thing to do?)

When you ask photographers, these are some of the common reasons you’ll hear:

1) I will help you police any unauthorised usage of your photos. You don’t want them ending up on a nasty site, now do you?
2) I know how to make this image work best as a print, so I can’t have you going and printing it badly – that will have a negative effect on my reputation.
3) The people in the photos didn’t sign model releases – by controlling any possible commercial use of these picture, I am saving you from a whole lot of trouble.
4) You could change the terms of the usage we’d talked about and put the images at the heart of an advertising campaign that you’re spending more than a thousand times as much cash on.
5) Because you’d be able to sell it as a stock photo and make money from it, or give it away to someone who really should be paying for it.

Let’s have a look at these arguments in more detail.

1) is a bit of a red herring. Sure, a photographer may already have systems set up to track and enforce any misuse, but there’s no inherent reason why a client who holds copyright couldn’t do it either. This argument doesn’t hold a lot of water. Anyone who leads with this one isn’t being entirely honest with you.

But this is a good point to mention something else. So far, I’ve not drawn any distinctions between photography commissioned for private individuals and that for corporate clients. But there is an important one. In section 85 of the Copyright, Designs and Patents Act 1988 there is a protection for people hiring a photographer for “private and domestic purposes”. They get to control where the images are published, and any photographer wanting to do anything else with them, regardless of them being the copyright holder, needs permission. This also means your family or wedding photographer needs your clearance to use any images on their website – and they’ll put this in their terms of business (if they’ve any sense). Again, I stress that this doesn’t mean the police will immediately come banging on the door of anyone who breaches this, but it will create the risk of a civil claim against the publisher.

2) is utter hooey. Show me the photographer who never worked again because someone printed one of their photos on Photobox and got the resolution wrong and it was a bit pixelated with a bad colour profile, and someone saw it and asked who took it, and oh god just stop now. This is nonsense. What sits behind this reason is, of course, a print-based business model. The photographer makes money from selling prints to you, and without that income, wouldn’t be able to sustain either their business or the (hopefully) quite cheap shoot rates they’ve offered. Of course, these business models can legitimately exist (bought a school photo of your child recently?) but if you come across this as a reason in a setting where you wouldn’t really expect to be buying a print, then push for a better answer.

3) is tenuous, really. The issue of “can I use a photo commercially without the permission of the people in it?” is a complex one all by itself. The answer is almost always “well, you won’t go to jail for it, but you will carry a variable amount of risk of somebody making a claim against you, depending on what the image is and where it’s used.” That can vary from someone claiming damages for you publishing their photo in what appears to be a compromising situation, to claims over invasion of reasonable privacy, or to implying their endorsement of a brand. The level of a claim will be related to how widespread the image is, and a host of other factors. But the liability rests with the publisher, not the photographer. In short: no sane commercial user of an image will take a risk of putting it on a commercial product (it’s less of an issue for news and editorial use) without a model release, and anyone doing so with someone’s privately commissioned photos also falls foul of s85 of the CDPA88 (see above). So, nice try, but this isn’t a particularly good reason.

4) and 5) are different flavours of the same thing. These centre on the concept of ‘value’, rather than resting on the costs of turning up and doing some photography and then some editing. This is where we get the heart of the real reason why photographers retain copyright.

What is the value of a photo? It’s a hard question. As many in my profession do, I try to get an understanding of what the intention of the photography is, and what the usage will be, before I even start to talk about pricing.

That’s because value is massively variable. The most expensive picture I’ve licenced was for a 5 figure (yes, 5) fee for a few years’ usage on a global poster campaign. Regardless of whether you think this is reasonable fee, it remains an inarguable fact. Real money, and lots of it, for the right picture. Similarly, a photograph of a rarely-photographed celebrity may generate an income stream for many years. Though a picture used in an online newspaper, or on social media, may command a fee measured in pennies – the point is that there’s huge variability, and photographers really don’t like the feeling that the potential for unfair, unknown exploitation of their work has been created.

We do our best as photographers to make these discussions as painless as possible for clients. If you commission me for PR or event photography, I will include a licence for all the usage that you’ll reasonably need. My job is to make you and your event famous, after all, not to tie your hands.

But that doesn’t stop clients setting out to get “full copyright” assigned to them. It’s also a standard piece of boilerplate legal text in many contracts (photographers always go straight to the section on Intellectual Property Rights). With a bit of discussion, this usually means they just want unencumbered usage for PR and marketing purposes, and that’s generally going to be acceptable.

If they held copyright, they’d be able to do an awful lot more, including selling the images onwards to anyone they chose to. That isn’t a good fit with the original terms of engagement, and I hope you can now see why a photographer wouldn’t agree to it – at least not without the negotiation of additional fees. Most of us have our price.

Proportionality also has a bearing on value. If a client commissions “a short event job” but it becomes clear that the resulting images are going to lie at the heart of a global advertising campaign with a £50m spend, your photographer will (hopefully) have terms of business that pick this up, and again, in our shoes you’d rightly expect fair dealing in terms of stated purpose and compensation. Similarly, an image that’s going to go on a million IKEA prints should command a fee that reflects that value. (Though this is an amusing tale about exactly that.)

The Story Behind That IKEA Photo of Amsterdam

It’s for this reason that many photographers put explicit clauses in their terms indicating that product or advertising uses will be subject to uplifts on a standard day rate. Handing over copyright would, again, remove that opportunity to ensure business was done on fair terms.

Of course an inexperienced one, or an ignorant one, or one that just wants to win the job against stiff competition and doesn’t really care, can agree to whatever terms they choose. Some shoots will be entirely inappropriate for resale given their subject matter. Others would be unethical, based on the access provided by the client, or the implied terms of engagement, or whether it would just be “doing the wrong thing”.

And in terms of “doing the wrong thing”, this piece wouldn’t be complete without mentioning the issue of image suppression, or exclusivity. It’s a common and reasonable situation that a corporate client wants to commission imagery that only they will see or publish (remember, the law looks after this for private clients). A good photographer will generally take a view that this is implied in almost all commissioned work of things that are not expected to be published publicly. But how can that work, if the photographer has held on to rights to republish?

There is nuance here. Lots of it. You could agree a non-disclosure agreement for a particular length of time (or for ever). I’ve signed many of these. You could rely on less formal instructions agreed as part of a photo brief. You could just rely on the professionalism of the photographer. Ultimately, nobody really wants to end up having these issues determined by a court.

Is it possible that photographers – particularly those who hold to the “no copyright buy-out at any price!” – are building up assets that may feed them in retirement? That after what everyone hopefully thinks is a reasonable amount of time, they’ll start to sell pictures? Possibly, yes. It’s part of the fine balance that exists in the industry between all our various interests.

There’s no doubt that sometimes copyright is retained when there’s absolutely no sensible route, or likely market, for image resale. There’s also no doubt that sometimes ‘unbranded’ images (the ones of the talent without the event logo in the background) may slip out to stock agencies to generate revenue. (I don’t do this, as a matter of principle.)

Clients don’t want to be cheated, but neither do photographers. The structure of copyright holding, licensing, and then other measures such as confidentiality agreements has evolved to be probably the best balance between lots of forces acting in different directions. It may not always be this way, but I hope this piece gives a fuller and better answer than you’ll generally find to the question of why photographers retain copyright.

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