Archive for March, 2011

You probably don’t own what you think you own

Monday, March 7th, 2011

First of all, let me preface this whole post with the usual language:  I am not a lawyer.  I am not dispensing legal advice.  If you feel I am wrong (or are even not sure) please consult a copyright attorney.

Ok, that being said, I want to talk about copyright and photo ownership.  There seems to be a huge misconception among average folks about the ownership of photographs of them and photographs that they pay to have taken.  I have done a bit of research and am gonna lay the facts out there, and if my conversations with friends and co-workers are any indication, there are many of you out there who are not going to be happy.

A photograph is considered a piece of creativity, a work of art, if you will.  No matter what the purpose of the picture was, who took the picture, what the compensation (if any) for taking the picture was and, for the most part, who or what is in the picture the same laws apply.  The photographer is said to have created the picture and from the moment he snaps the shutter, he owns it.  Period.  No buts at all.

Now let me address a few comments that some friends and coworkers had when I explained this to them.

1.  You took a picture of me, therefore I own it.  I own my likeness so I own the picture. – Nope.  The photographer owns the picture.  Because you are in the picture, you have some say over HOW HE USES the picture, but you own nothing.  And by the way, your say is limited.  If the photographer calls it art, hangs it on a wall and sells copies of the print, you are out of luck.  That’s perfectly legal.  Now, on the other hand, if he tries to sell it to advertising to sell a product, he needs a model release signed by you.  The photographer CANNOT sell it for profit (other than as art or when accompanying a news story) without a signed model release.

2.  I paid the photographer for a portrait session, therefore I have bought the rights the the photographs and own them. – Sorry, wrong again.  The same rules apply.  What you bought was the photographers time and skill.  You may have bought prints, but that is usually extra.  The photographer still owns the rights to the photo unless it is specifically stated in your agreement with him that you are to be given the copyright to the images.  By the way, this almost never happens.

3.  There was a photographer taking pictures of my kids in the park.  He’s not allowed to do that without my permission!  And I own and have a right to any pictures he took of my kids! –  You can probably guess the answer here, folks.  Nope. Your kids were in a public place.  He doesn’t have to ask permission to take the pictures.  He is under no obligation to show you, let you approve, provide copies, or anything else.  This is just like number 1 above.  The only obligation is if he is going to sell them as advertising, he needs a model release.    An even less well known fact is that, unless you are granted reproduction rights, when you take the professional portrait you had made of the kids and scan it in and give it to all the friends and family, this is a serious breach of copyright and you could be sued and would lose. The same holds true of posting it on the internet.  The photographer owns the rights and may post it on the internet.  You, may not, unless you have been granted the rights.   Small time photographers will generally not sue you over this, because it costs too much and is too much hassel.  However, well known photographers will do this in a heartbeat and the vast majority of the time, it’s an open and shut case and the photographer wins.  Period.

4.  There was a photographer walking on my street and he took pictures of my house and my kids playing in the yard.  That’s illegal!  He can’t take picture of me or my property without my permission.  – A photographer can shoot from any location that he legally has access to and can shoot anything that has no reasonable expectation of privacy.  Your yard has no reasonable expectation of privacy and a photographer on a public street can shoot to his hearts content from the public street.  Again, if he uses it in advertising, he must obtain your permission to sell to advertising.  NOT to take the pictures, be there, create and sell the pictures as art, etc…

Now shooting in through a window is another story and will vary from state to state and situation to situation.  Some will say that there is a reasonable expectation of privacy when you are in the house.  Others will say that if your blinds are open, there is no reasonable expectation of privacy.  You may have a leg to stand on here.

5.  A photographer began shooting pictures in my store.  It’s a private business and I didn’t give permission so I own the photos.  The photographer must surrender his memory card/film to me or my security rep and must leave the premises. –   Well, you are partially right.  A photographer is not supposed to shoot on private property without permission.  That being said, the photographer still owns the photos and the equipment.  You may not demand he hand over anything.  What you can demand is that he leave your property.  His staying after you tell him to leave is trespassing and you are well within your rights to call the police and have him arrested, FOR TRESPASSING.  If you or your security rep attempt to physically take the card/film/camera or pretty much anything else, you will probably winding up on the losing end of a court case.

So to boil it all down, the photographer owns the rights to his work UNLESS he signs the copyright away.  Since this almost NEVER happens, you can bet that 99.9% of the time, the photographer still owns his rights.  In addition, a photographer may photograph anything with the following exceptions:
•    Certain military installations or operations.
•    People who have a reasonable expectation of privacy. That is, people who are some place that’s not easily visible to the general public, e.g., if you shoot through someone’s window with a telephoto lens.

Some great reading on this subject can be found in an article by Andrew Kantor at USA Today and at “The Photographers Rights” pamphlet put out by attorney Bert Krages.

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