Differences between photo copyright and usage rights
DISCLAIMER: I am not a lawyer, and this post should not serve as official legal counsel. You should always seek the advice of a certified legal professional.
Regardless of whether you hire a photographer for a personal shoot or a commercial one, you’ll most likely be signing a contract of some sort with your photographer. These vary based on the type of shoot as well as the photographer, but most contain some basic sections: what kind of coverage/how long, how many photographers, how will images be delivered, model releases, payment details and copyright & usage rights.
Many of these sections are easy to understand, but I’m often asked about the difference between copyright vs usage rights so I thought I’d take a few moments to write a post in layman’s terms that will hopefully help.
I paid for a photographer so I own the photos, right?
Well, not exactly. Most people assume when they hire me, they’re paying for my time to take, edit and deliver a set of photos. This is true to a certain extent, but you don’t actually OWN the photos I take for you. How can this be?
When you hire a photographer, the photos she creates are actually owned by the photographer and protected under copyright law. Even when your photographer delivers your photos to you, she still retains this ownership & copyright, but she issues a license that grants you usage rights to use the images. Exactly how you can use the images should be spelled out in your contract. Confused yet? Keep reading and it’ll all make sense…
What is Copyright?
Copyright is the exclusive legal right, given to an individual to edit, print, sell, publish, distribute, etc. Contrary to popular belief, photo copyright does NOT have to be claimed or registered. Copyright is created the instant the photo is created and is assigned to the person who pressed the button. No one else can use it, claim credit for it, or create derivative works (edited versions) without the copyright holder’s permission.
Note: There are certain situations where this may not be the case. Images created as “works for hire” belong to the hiring client, not the photographer. This is typically the case for our second shooters who create images on our behalf. Most professional photographers will not agree to create “works for hire” for their clients as it requires that they give up all copyright (and potential future profit) to the client.
Since the photographer actually owns the copyright, they’ll grant you permission to use them. These permissions are usage rights, and your contract will spell out exactly what you can and cannot do with the images. You may see terms like “Limited Usage” and “Unlimited Usage.”
For non-commercial shoots like weddings & family portrait sessions, usage rights typically allow you to share the images on social media and make your own prints & albums for family & friends. For commercial clients, usage rights may specify how images may be used, whether they may be shared or sold to a 3rd party, and if there is a time limit for use. Real estate photos, for example, are usually licensed for use to promote the sale of the property for a limited time only.
Usage rights usually stipulate that the images are for the purchaser’s use only and cannot be transferred or sold to any other 3rd party. Why? We created these images for you, and you paid for the rights to use them. Imagine for a second that you’re a real estate agent… how would you feel about another agent using photos you paid for to list that property the next time it goes up for sale? Unless the photographer has given them permission, this constitutes copyright infringement and the photographer can insist that they refrain from using them. Why should another agent benefit from work that YOU paid for?
Exclusivity & Privacy
Let’s talk a little bit about exclusivity & privacy. Since your photographer owns the images, they can share your images on social media, post on their website (or any other website to promote their company), and they can even grant licenses to a 3rd party to use or sell them if they wish. Many clients are excited to see their images featured on their photographer’s portfolio, but what if the photographer wants to put them on a stock photo website to sell them? Your face could show up on a billboard or in a magazine advertising something questionable!
Unless you have something in your contract stating otherwise, your photographer has unlimited usage and can use or sell the images any way they see fit. Now, most of us aren’t out to embarrass our clients. If we’re using client images, it’s typically to showcase the session on our own social media and website portfolios, and we may be granting licenses to vendors so they can also showcase the work they did for you.
If you have any concerns about how your photographer uses your images, you can ask for limited usage for the photographer’s promotional use only (no reselling or granting licenses to anyone else, including vendors and stock photo agencies, without your permission) or you can request exclusive rights so that the photographer must get your permission before using or licensing any image for any reason. Keep in mind that requesting limited or exclusive rights often incurs a fee and can be very expensive.
Example 1 – Buying a photo is like buying a song (hint: you aren’t really buying it)
When you purchase a music track or album, you aren’t actually purchasing the music itself. The musician retains the copyright to their music, but you are issued a license to listen to it yourself. You don’t own the music outright, so you can’t make copies and give them away or sell them. And you can’t use the music for another purpose besides listening to it (like using it as the soundtrack in a movie). You also can’t edit it and reuse it, like taking the lyrics and setting them to your own music (a derivative work). The musician owns the music, but you can pay a small fee for the right to listen to it. Anything beyond that would require additional permission/licensing and will come at a cost.
Example 2 – Why we don’t let you give your images to anyone else without our permission
I was asked this question just this week from a commercial client, so I thought I’d share this example with you. If I explained copyright vs. usage rights well enough at the top of this page, it should make sense now that you realize you aren’t really paying simply for the photographer’s shooting time but the licensing and usage rights to the images as well. And there may be exclusivity or privacy clauses in the contract that the photographer must consider.
Let’s say an event planner is booking vendors for a corporate holiday party and reaches out to a photographer on behalf of their client, and the corporate client decides to book. The corporate client will sign a contract for photography services and receive usage rights for the images. But the event planner ALSO wants a full set of high-resolution, non-watermarked images to use in their next brochure. Any maybe the caterer, the band, and the venue do, too. If they want something other than low-res, watermarked complimentary vendor images, they would need to purchase a license to receive and use the full-size files, just like the original client did. Depending on the photographer, these may be priced individually or as a bulk set of all images from the event. And by going directly through the photographer, we can ensure that any privacy & exclusivity clauses are honored and that the 3rd parties are using images provided in accordance with copyright law.
The bottom line
Photographers love to take photos, and we love to see our clients love our work so much that they want to share it with everyone! Just be mindful of giving away images to other people or companies since you don’t actually own them outright. Our reputation and livelihood depends on making sure our photographs are used as intended, with people’s privacy respected and while earning a living through our work. We understand that copyright is confusing for many people, so if you aren’t sure about how you can legally use your photos, ask us! We’ll be happy to help.