September 15, 2022
Today, paying for having your photo taken is becoming more and more normal.
Not only for special occasions such as weddings and other formal celebrations, but also family portraits, profile pictures or photos for social media, to name a few.
With this follows a common question that often comes up in relation to copyright:
Do I own the copyright if I’m in the photo?
To many, it might seem intuitive that you - being the subject of the photo - also own the copyright.
However, in reality, it is a misconception that if you are in a photo, you are also the owner and can use the image as you please.
In fact, this is one of several myths about copyright that must be debunked right now!
A possible explanation of this could be the large amount of new or less educated photographers out there offering their services to friends and family.
Although the rise among people taking up photography as an art form is a positive for a creative society, a green photographer starting out may not be in-the-know about copyright like a professional photographer is, and therefore (sadly) might enforce and strengthen the misconceptions about the ownership of your family portraits.
But the truth is that, unless the photo happens to be a selfie, you don’t own the copyright.
In this article we will explain why by taking a look at how copyright law applies to portrait photos, as well as some things to consider when dealing with professionally taken portraits.
With this knowledge, you will be able to go about your portrait photos in a copyright-friendly way, which not only respects the photographer’s hard work, but also helps you avoid inadvertently infringing on their copyright , which not only is costly, but also a general lose-lose situation for you and the photographer.
Before diving in, it’s time for a quick definition - because what exactly is copyright?
Copyright is the legal rights of the owner over certain types of creative works, this could be a photograph - as in the case of this article - but it could also be a text, i.e. copy or a book.
It is the individual who created the work who owns the copyright, i.e. the copyright owner or copyright holder. This means that they are the one who decides who can use the work and in which contexts it can be used.
Copyright is an umbrella concept that includes both economic and moral rights.
Economic rights relate to your right to earn money off your work. This involves the right to control or make copies of your work and the right to make your work available to the public (or not).
Moral rights entail the right of attribution, i.e. for the content creator to be named for their work. Also, the creator has the right of respect for their work, which means that others cannot change or in any way manipulate their work or use it in a context that they haven't given permission to.
For more information on copyright basics, make sure to check out this article.
Copyright can be considered a positive force for both content creators and society at large as it both protects their work and provides an incentive to create more original work, ultimately promoting creativity and innovation in society.
Think about it this way: if there was no protection for creative works and people could just use them as they pleased, making copies of whatever they wanted and even selling it and profiting off the work that someone else has created, there would be no motivation to keep creating.
Content creators need to make a living just like everyone else, and copyright is in many ways an acknowledgement of the value of intellectual property and is there to protect their livelihood.
So who owns the copyright, when it comes to portrait photos?
The general rule is that when dealing with portrait photos, it is the person who took the photo, i.e. the photographer, who owns the copyright and therefore decides how the photo can be used and by who.
Unless you took the photo yourself, this might seem a little strange, but this scenario is just one of several examples of the rules of copyright law in action.
Yes, you may well be the actual subject of the photograph, but the copyright belongs to whoever pressed that shutter button!
It doesn’t matter that it’s a lovely photo of you. As with other original work, the copyright lies with the creator of the image and you must ask for permission to use it.
This means that - in theory - for you to use that picture your friend took of you in that perfect light and from your best angles, you would need to ask them for permission.
However, in practice, most likely your friend won’t mind (and they may even be surprised by your question), but nevertheless if they actually did say no, it would be their right and they would have the law on their side!
So when you pay a photographer to take a photo of you and you are given the photo (either digitally or physically), you are paying for that particular copy of the photo.
This is your copy and you own it since you paid for it, but what you don’t own is the right to make copies of it; doing this would be infringing on the photographer’s economic right, i.e. the right to control or make copies of the work.
There are particular situations where this copyright rule doesn't apply, below we have gathered the main ones.
The photographer can choose to transfer his/her copyright to someone else.
By doing this, they are no longer the copyright owner and instead you (or whoever they have transferred the copyright to!) are the copyright owner and can decide how the content can be used and by who.
Usually when paying a photographer to take your photo, they will give you a license to use it. The license agreement specifies how the photo can be used, in which contexts it can be used and for how long.
The license is personal and unless it has been specified that you can make copies of the photo and give them to friends and family, only you can use the photo.
An aspect that licenses also cover is whether an image is for editorial or commercial use.
Editorial use is when an image is used in a magazine, an article or a newspaper story. Here, the purpose of the image is to illustrate something.
Commercial use, on the other hand, is using the image for commercial purposes, e.g. to sell a product or service, basically using it as part of an ad.
If you hire a photographer who is working for a company i.e. on a contractual basis, different rules may apply.
When it comes to the so-called work-for-hire relationships, the copyright does belong to the photographer, but the usage rights belongs to the company that they work for.
There is a general distinction between different types of creative work, e.g. whether you are dealing with the commissioned work from a specific photographer in their own time or whether you book a photo shoot with a photographer and your portrait photos are taken in the context of the work they carry out for a photo agency.
In the first scenario, the general rule of copyright belonging to the creator applies, whereas in the second situation, the copyright belongs to the photo agency that the photographer is working for.
Although you might not own the copyright to a photo that a photographer has taken, there are certain limits to how they can use it.
For instance, if they wish to publish or sell the photos, they must have a release form from you, as their client stating that they can do this.
Also, as the subject of the photo you have certain rights that relate to your likeness and reputation.
This means that, although a photographer’s copyright enables them to use their photos in different ways, i.e. photo reproduction, derivative works, distribution and display, they are not free to use it for any purposes that you have not agreed to, i.e. for commercial purposes.
The reasoning behind this is this:
By using your likeness or a photo displaying your defining attributes - in other words, your face (which is the essence of what makes up a portrait photo!) - in advertisement, it could give the impression that you are endorsing a product or a service that a company is offering.
This would be considered normal if you are paid to model, signing a model release form giving the photographer permission to use the photo for commercial purposes, but not if you are paying the photographer.
Note that this rule applies only to actual portrait photos, i.e. photos displaying your face and for work that is commissioned or ordered from someone.
This means that, your rights to your likeness and reputation do not apply to that photo where you randomly appear in the background.
In other words, someone has to intentionally order for the work to be created and you must be the intentional subject of the photo for this rule to apply.
In doubt about whether the rules of copyright apply in your situation? Or just interested in knowing more about how to stay copyright compliant online?
Feel free to reach out to us at firstname.lastname@example.org and get in touch with a legal expert in your area!