As a photographer, your work is your art, your business, and your livelihood. Whether you are a freelancer, a hobbyist selling your photos online, or a professional contracted for commercial projects, it is crucial to understand the legal protections afforded to you under copyright law. Having represented many photographs over the years in my law practice, in order to answer the most frequently asked questions, what follows is a basic outline of the key rights you should be aware of in order to protect your creative output.
1.
You Own the Copyright the Moment You Take the Photograph
Under the U.S. Copyright Act (Title
17, U.S. Code), copyright protection exists from the moment the photograph is
created in a fixed, tangible form - which means as soon as you take the photo
and save it (digitally or otherwise), you are the copyright owner.
This gives you exclusive rights to:
- Reproduce the photograph
- Distribute copies
- Display the image publicly
- Create derivative works
- License the image to others
You do not have to register
the photo with the U.S. Copyright Office to own the copyright. However,
registration does provide additional rights and remedies, and is required if
you want to commence legal action for infringement and collect statutory
damages and attorney’s fees.
2.
Work for Hire
Under certain circumstances,
particularly if you are employed by a company and take photos as part of your job duties, or you are contracted for a particular project, your
employer - not you - likely owns the copyrights as a matter of “work for hire”
under US copyright law.
For freelancers, a work for hire
agreement must be in writing and fit into a narrow category of accepted works
(e.g., a contribution to a collective work or part of a motion picture). If it
does not meet these criteria then you retain copyright, even if someone else
paid for the shoot (unless you assign it in writing).
Best Practice: Always use a written contract clearly stating whether the
work is a work for hire or a licensed work where you retain the copyright.
3.
Licensing: Control How Your Work Is Used
Licensing allows others to use your
photos under your terms. Licenses can be:
- Exclusive
or non-exclusive
- Limited
by time, geography, or medium
- Royalty-free
or rights-managed
Be specific in your contracts. For
instance, if you license a photo for use in a print brochure, state whether
digital use is also permitted. Ambiguity often leads to disputes.
4.
Model Releases: When You Need Them
A copyright gives you the right to
your image, but using identifiable people in commercial contexts may violate
their right of publicity or privacy.
- Commercial use
(advertising, product packaging): Requires a signed model release.
- Editorial use
(news, commentary, art): Generally does not require a release.
- Stock photography:
Most reputable agencies require model releases for any identifiable person
in a commercially licensable image.
Best practice: Get signed model and property releases when possible - it
protects you and increases your options for licensing.
5.
Infringement: What If Someone Uses Your Work Without Permission?
If someone uses your photo without a
license:
- Document the use
(screenshots, URLs, dates).
- Determine if it’s a fair use (educational, commentary, etc.—consult a lawyer).
- Send a cease and desist letter or DMCA takedown notice.
- File a copyright infringement claim if needed (only possible if the work is registered).
If you filed a copyright
registration on your work prior to the infringement then you are entitled to
damages in an amount up to $150,000 per infringement plus legal fees. Without a
copyright registration, you’re limited to actual damages and profits which you
must prove at trial.
6.
Protecting Your Work Online
- Use watermarks strategically.
- Embed metadata (EXIF/IPTC) with your name and
contact info.
- Consider reverse image search tools (like Google
Images) to monitor unauthorized use.
- Register your most valuable work with the Copyright
Office - it’s affordable and powerful.
Final
Thoughts
Photography is both an art and a
business. By understanding your legal rights, you can control how your images
are used, protect your creative investments, and take informed action against
infringement. In most cases, it is best to try to memorialize get your
arrangement in writing. Remember the importance of contracts, copyright
registration, and proactive enforcement. When in doubt, consult a lawyer experienced in the area for
legal advice.
Wallace Collins is an
entertainment lawyer and intellectual property attorney based in New York with
over 35 years’ experience in music, film, television and emerging technology,
and he handles many current digital media matters including issues that arise
with AI. He was a songwriter and recording artist for Epic Records before
receiving his law degree from Fordham Law School.
Website: http://www.wallacecollins.com
