Why copyright transfer is recommended for commercial photography
Topic: Commercial Copyright Transfer
Time Investment: 7 Minutes
Suggested Product: Commercial contract, Commercial license, Copyright Transfer document
Commercial copyright transfer is greatly common, especially when the resulting photographs are especially specific to brand and/or photographs including people that are prominent in the brand (headshots, influencer shots, etc.)
Now, before we get into this, here are some quick options that are typical in commercial photography rights management:
- Photographer retains copyright and simply licenses to the client
- Photographer transfers copyright to the client (photographer can't use in marketing)
- Photographer transfers copyright to the client, and the client licenses back for photographer use in marketing and/or sub-licensing
From my experience as a copyright and rights management attorney for photographers, I have seen many variations on the above outlined arrangements. Generally speaking, the best solution for rights management is the copyright transfer from photographer to client.
Why, you ask?
Let’s say I get headshots or photos specifically done for my business + a license but NOT copyright transfer, and then the photographs get infringed by a third-party.
I, the client, am then stuck relying on the photographer to enforce their copyrights (unless we contractually agreed that photographer would legally pursue, but that has its own host of issues.) However, even this contractual duty can be administratively and financially cumbersome because if the photographer is notified of infringement and refuses to pursue infringer for the infringement then I, the client, am stuck pursuing the photographer for breach of contract and risk loss of brand value.
How does copyright transfer work?
It honestly is simple: utilize a copyright transfer document + charge accordingly.
By default, an independently contracted photographer retains the copyright ownership rights in the photographs.
The Copyright Law in the United States grants several exclusive rights are granted to the holder of a copyright:
- protection of the work
- to determine and decide how, and under what conditions, the work may be marketed, publicly displayed, reproduced, distributed, etc.
- to produce copies or reproductions of the work and to sell those copies (typically including electronic copies)
- to import or export the work
- to create derivative works (works that adapt the original work)
- to perform or display the work publicly
- to sell or cede these rights to others
- to transmit or display by radio, video, or internet
Copyright is retained by the photographer unless the photographer was under an employment status of the hiring party or an agreement exists to transfer the rights. These rights exist even without registration, although that is recommended by the copyright holder.
In a typical situation, photographers are often hired as independent businesses by the client - therefore, copyright remains with the photographer. If the client wants to be the one to control the rights of the photographs, a copyright transfer document must be executed.
If you are still fuzzy on copyright law in the US, here are some resources:
What if I don't want to transfer copyright to my client but will agree to pursue infringers?
Alternative: What if my photographer won't transfer copyright, but I want the photographer to agree to pursue infringers?
Remember, we identified above that a copyright transfer document is the best way for an entity to control their brand and have enforcement if infringed, however, an option exists that allows for photographer to retain the copyrights but contractually agree to pursue infringers on behalf of the client.
What if I didn’t get the photograph rights transferred and the photograph is infringed?
If you are the client, you can seek to encourage the photographer to enforce their rights. This is often super difficult especially if they haven’t taken the steps to register the photograph and/or don’t have the financial capability to do so.
If your face is in the photograph, you can seek to pursue an infringement on the basis of a publicity rights violation, but this is often greatly weaker and less protected. Furthermore, it’s also a state law claim versus copyright (that is federal and, if registered, has a risk of greater damages and attorneys fees to be paid by the infringer).
What if the photographer wants to license to others?
Technically, you can have the copyright transferred to client and then have the client license back to you for sub-licensing. This isn't super common as it tends to defeat the purpose of the copyright transfer, but it is not unheard of.
How do I charge for commercial photography?
We have an article here - but digging into copyright transfer amounts is not an exact science. You have to take into account the loss of potential licensing revenue.
Can I use these photographs in my portfolio if I transfer copyright?
You definitely can, if you get a license back from the client. It would work like this: Copyright ownership transfer to client and in same document the client can agree to license back for your use in marketing.
Remember our options outlined above:
- Photographer retains copyright and simply licenses to the client
- Photographer transfers copyright to the client (photographer can't use in marketing)
- Photographer transfers copyright to the client, and the client licenses back for photographer use in marketing and/or sub-licensing
What if I, a photographer, hire for headshots?
You are the client in that situation! Imagine, you don't contract for the copyright of the photographs to be transferred to you - you can end up in the exact situation outlined in the introduction of this article.
Can I get a summary on what I need for commercial photography?
Sure thing!
Definition: Commercial photography, as we use the term here on TheLawTog®. Technically, any sale of photographs is commercial, but personal portraiture like general, senior, boudoir, wedding, etc. have an end use of personal usage rights for photographs versus commercial rights that are for use in business - such as headshots, marketing shots, etc.
Documents needed:
- Commercial contract (either outlining transfer of rights or retention of rights)
- Commercial license (permissions governing use of the photographs by the party receiving the license)
- Copyright Transfer document (if your contract doesn't contemplate, or need to do a transfer after the fact)
- Third-Party Enforcement Pursuance Provision - if the rights are retained by photographer, this provision requires the Photographer to pursue infringer. Typically, not in contract by default, often client requested.
Is this only applicable to photographs?
Nope! This is super common with logos, as well. Consider, if you are the client having a logo created and don't get the rights - the following can happen:
- you can't trademark or stop someone else from using
- the logo designer can license to others
- the logo designer can stop your use at any time
- if someone infringes the logo, you're reliant upon the logo designer to pursue them
