Who Owns the Photograph?

Kenneth Jones

Tags

architecture, copyright law, interior design, licensing, ownership, ownership rights, photographs, usage

Let's say you're a professional interior designer, and you retain a photographer to take photos of your latest kitchen project that you intend to use to market yourself and your business.

A few months later, the contractor who did the actual construction of your kitchen design contacts you and asks if you'd give him a copy of the digital file of one or more of those photos to use to market himself and his company. Now, here's the problem.

photograph

If you decide to provide any of these photographs to this contractor (or anyone else), the moment you provide that digital file, you will be in violation of the U.S. Copyright Act and are open to civil (and possibly criminal) penalties.

Why?

Because YOU DON'T OWN the photographs! (There. The cat's out of the bag.)

Now, you're probably thinking, "I hired the photographer. I paid the photographer. And I bought these photographs. So, they're mine, and I can do anything I want with them."

HOWEVER, unless your contract with your photographer SPECIFICALLY STATES IN WRITING that the photographer has sold you the copyright to those photographs (which is highly unusual), you DO NOT own them; the photographer does. In that case, what you actually purchased was a NON-TRANSFERABLE LICENSE FOR YOUR EXCLUSIVE USE of those photographs FOR A SPECIFIC PURPOSE, such as marketing yourself or your business, or both.

Copyrights

My Knowledge Base

Before I get into the fundamentals of copyrights, you should know I am not a lawyer, and this information is not legal advice.

My experience with copyright law stems from being a recording artist, songwriter, and producer in the music industry since the 1960s. I've also written many courses and seminars and published several books, reports, and articles during my decades-long real estate career.

photograph

The Strangeloves

I currently own copyrights for many intellectual properties (including thousands of photographs), and, by necessity, I have obtained extensive familiarity with copyright law. But, again, I am NOT a lawyer.

Basic Copyright Facts

According to the United State Copyright Office"Copyright is a type of intellectual property that protects original works of authorship as soon as an author fixes the work in a tangible form of expression."

It also says, "Once you create an original work and fix it, like taking a photograph, writing a poem or blog, or recording a new song, you are the author and the owner." [underline added]

It's generally understood that U.S. copyright law (Title 17 USC) effectively says that at the moment a photographer presses the button on their camera and captures an image, that photographer becomes the copyright owner of that photograph without any further action required.

What's Licensing?

Licensing is when the copyright owner (in our case, a photographer) gives someone a limited right to use their intellectual property (the photograph) for a specific purpose. The license may further limit the use of the photograph to a specific time period, a specified geographic location, and more.

I generally explain a photographic license as being similar to a real estate lease; the landlord gives the tenant the right to use and occupy the property in exchange for the tenant paying rent, but the landlord doesn't transfer their ownership of the property to the tenant.

photograph

Generally speaking, the photographer determines the terms of a photograph license. However, licensing terms can sometimes be negotiated to accommodate exceptional circumstances. But don't be surprised to find that when a photographer accommodates an unusual circumstance, it will also involve special pricing.

That said, a typical photograph license is limited to the exclusive use by the photographer's client for a specific use, such as for marketing the client and the client's business. This so-called "exclusive limited use license" means the client does NOT have the right to allow anyone else to use those photographs. More specifically, the client is legally prevented from transferring their license to anyone else.

Summing it Up...

Although I've barely blown the dust off the book cover of copyright law, I can say this with a very high degree of certainty; If someone uses a photograph without the legally licensed authority of the copyright owner to do so, they are likely in for a very costly surprise.

So, if you're a real estate agent who hired a photographer to shoot photos of your listing, or an interior designer who hired a photographer to shoot a layout of your work for a magazine, or an architect or a builder who hired a photographer to memorialize your building, before you decide to share any of those photos, be sure not to violate the terms of your photographer's license.

Contact me to discuss your photography requirements and to learn the specifics of my licensing terms.



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