So, you’ve got a great series of images or even just one fabulous image that you are really proud of, and someone comes along and asks to use that image to advertise their business or wants to print it on a T-shirt, and they offer you a deal you just can’t refuse. What do you do?
Or what if you want to make it possible for your portrait or wedding clients to have digital images printed by a print store, but want to protect your rights otherwise?
It is important to remember that only a copyright holder has the exclusive rights to a creative work, and only they can grant a person a license to use their image or work – an exception being ‘work for hire’ situations where the organization employing them will own the copyright where the photography is part of their usual duties.
Copyright is like any other property, in that all or part of the rights in a work may be transferred by the owner to another. Copyright law applies whether a photographer is paid or unpaid, professional, semi-professional, or a family friend (or family member) with a camera.
It is illegal for any individual or organization to use, scan, distribute, print, alter, or otherwise reproduce any image without the express written consent of the photographer. This means that selling an object with your image on it or even a print of one of your images does not constitute a transfer of the copyright of the image, nor does giving a client a USB storage device, a DVD, or CD with images on it. Indeed, buying a print of your image does not give the purchaser any rights to reproduce that image or have their image placed on another object.
Section 106 of the 1976 Copyright Act governs federal copyright, and section 202 covers transfer of copyright, and forms the basis of how we’ll work through transferring or licensing your copyright to an image.
Here are the basics:
- Any or all of the copyright owner’s exclusive rights or any subdivision of those rights may be transferred. This means you can transfer or license rights for a particular kind of publication or use of the image.
- But the transfer of exclusive rights is not valid unless that transfer is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent. (see also Section 204 1976 Copyright Act)
- Transfer of a right on a nonexclusive basis does not require a written agreement.
- A copyright may also be conveyed by operation of law and may be bequeathed by will or pass as personal property by the applicable laws of intestate succession.
- Copyright is a personal property right, and it is subject to the various state laws and regulations that govern the ownership, inheritance, or transfer of personal property as well as terms of contracts or conduct of business. For information about relevant state laws, consult an attorney.
- Transfers of copyright are normally made by contract.
- You can submit evidence of a copyright transfer to the Copyright Office if you want it to be recorded.
So how do you transfer copyright in an image (whether exclusive or non-exclusive)?
The short answer: Put the details in writing. Any copyright transfer agreement should detail any license you are willing to give to have your image affixed or reproduced, this includes rights to print images from digital media. Make sure it complies with federal (and state) law as it applies to you; when in doubt, ask an attorney for assistance.
There are no forms provided by the Copyright Office to transfer copyright.
The Copyright Office does, however, keep records of transfers if they are submitted to them. If you have executed a transfer and wish to record the document, see Circular 12, Recordations of Transfers and Other Documents, for detailed instructions.
Some Common Scenarios
A client who pays for a portrait session does not own the photographs produced from the session by right.
They are, usually, paying for the photographer’s time. They might also be purchasing a License giving them the right to use the prints or digital images for a specified purpose.
They may also buy prints, albums or other kinds of wall-art. The rights of the client to the use of the images should be put in writing so that all parties are clear on what they are paying for and how the images can be used.
A mother asks you to take family portraits of her family. In some of the images, she has her children wear some of the clothing items that her business sells.
After seeing the images, she is so pleased she declares that she’s going to blow them up and use them as advertising for her products. Firstly, it may be important for you to prepare an additional license and develop a fee structure should your clients ask to make commercial (in this case advertising) use of your work.
Secondly, should you wish to license one of your images that includes a model or a subject for the purpose of advertising by one of your clients, you will need to gain authorisation from the persons (or their guardians) before licensing that image or using it in advertising.
In the case of Commercial photographers, they usually sell their clients a license to use the image (sometimes referred to as “usage rights”) based on the client requirements (or brief).
For example: a photographer may take photographs of objects owned by the client, like products, food, or property, and they would likely be paid for their time as well as a license (this is a separate transaction to the fee charged for their time) which enables the client to use the images in the way they intended.
For example: the photographer may be given a brief that the images will be used in marketing collateral, in print or online advertising, on a product label, or on a client’s website. This license may be exclusive or non-exclusive.
Often, a commercial license might grant a client exclusive rights to those images for a specific period of time. This exclusive license might mean that no other party would be able to buy a license to use those images during that period. The cost of a license for commercial use often depends on the scale of distribution.
Terminations of Transfers
Sometimes an author transfers copyright to another party and at a later date reacquires the rights through “terminating a transfer.” This termination process is complex and can be confusing. The rules are also different depending on when the work was first created (when the shutter click in photographic terms) or published. In very general terms, transfer terminations occur between 28 and 56 years after first publication. This is definitely an area where talking with an attorney can be beneficial.
You can transfer copyright by written agreement limiting the use of the licensee and the rights of you as the licensor to sell those same rights to another party. The type of license you choose and the form of the agreement is best discussed with an attorney to ensure that you are well protected. Finally, copyright will remain with the photographer unless there is an agreement otherwise.
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