The Copyright and licensing issue

There is one subject that often comes up when I am working with a new client - that is a misunderstanding of the licensing of photography. Photography is not sold - it is licensed. I'm no copyright attorney or even an expert on copyright law, so what I write here is just a basic understanding of what the ASMP and the US Copyright office websites have taught me about running a fair and professional business practice.

According to copyright law any photographer who takes a picture is the owner of that intellectual property. Anyone who wants to use the photograph needs to gain permission or obtain a license to use it. That seems simple.  However, there is a very big misconception. Many think if they hire you to photograph a project, they own the copyright and can do anything they want with the pictures. The truth is, according to copyright law the photographer owns the photograph as intellectual property when he/she takes the picture. It doesn't matter if the photographer is a professional or an amateur. Nor does it matter if the photograph is good or bad. The photograph is automatically copyrighted to the person who took it.

In order for the company or person who hires the photographer to own the copyright, a situation known as "work made for hire" would need to exist.  This has to be done under certain circumstances and is a little complicated. I have attached a link for you to read about this. It seems the hiring party must regard the photographer as a W-2 employee for this to be valid - the employer must do the scheduling, pay the taxes and FICA, cover the photographer for liability and workers comp, offer benefits, provide the equipment necessary for the work to be done and basically claim the photographer as an employee. Both parties must also understand and sign the "work made for hire" agreement.

Assignment or custom photography is quite different. The client contracts a photographer for an assignment. The photographer then charges for the assignment and the licensing of the photographs according to how they will be used.  This is how commercial photographers make a living - by licensing the rights to use their photographs. The charge for the assignment (known as the creative fee plus expenses) is for time, equipment, expertise and other business expenses like liability insurance, transportation, assistants, prop rentals and other expenses. The hiring party usually pays for these along with licensing. Sometimes other parties involved in the project share in the cost of the assignment plus additional fees for their own licensing. Each party gets its own license for its particular use. Typically the architect and contractor use the photographs similarly but the building owner may have other ideas of how they want to use the images. Each party should negotiate their own individual needs with the photographer.

The "copyright transfer" is used when the artist transfers a copyright outright to another party. Such a transfer can be very expensive for the buyer.

With stock photography, existing photography is bought for a particular use. Magazines and ad firms make common use of stock photos. The stock photography business has been overrun with photography by amateurs who are willing to practically give their work away because they don't realize the value of it and don't depend on that income for a living. Licensing this kind of photography can range from $1 royalty-free images to very expensive high end stock photography with specific usage rights. It can be said that many amateurs are quite good. However no one is likely to find stock photography of a just completed building to suit their own individual needs.

The truth is most companies ( architectural firms, for example) which hire an assignment photographer need the photographs for only a limited use and have no real reason to pay for excess usage they would never need. Any specialty photographer has invested much time in developing their art not to mention a sizable investment in expensive equipment. It is also worth noting that the process of taking the image from concept to delivery is very time consuming. To state it plainly, the photographer deserves to be paid for his/her time and expertise.

The ASMP and AIA have worked together to create a document titled Working with an Architectural Photographer to help create a better understanding of the agreement drawn between a photographer's art and the client's needs. It addresses everything both photographer and client should know and understand when doing business together. I personally refer to it often and make it a habit to give it to new clients to give them a better understanding of the way I do business.  I think it is good for everyone to be on the same page from the beginning.

I recently read, on the AIA website, the fifth installment of a six part article called Copyright or Copy Wrong. I think it is a very much a worthwhile read,  along with the rest of the series.

I hope this short write-up sheds some light on the concept of licensing photography. I try to learn something new everyday. And when I do, I like to pass it on.

Until next time...