Okay, okay, I know. Right now you’re thinking, “your first guest post is about Copyright? Really??”. And I know, this seems like the last thing you want to read about… but it’s IMPORTANT, and definitely worth 10 minutes for a quick, online crash course! If you can bear with me for this post, you’ll know the basics you need to make informed decisions with your creative works.
Copyright matters to all creatives; it is essential to ensuring your works are protected against unauthorized use. Even if you don’t intend to monetize your work, copyright is important to making sure your images aren’t being used without your permission. If you do monetize your work, copyright is the legal device that gives your work value.
So some of you are probably thinking, “I just like to shoot and collaborate, this isn’t about money for me”. I get you! Your time is valuable, even if money isn’t exchanged. Did you do a test shoot, where everyone chipped in their time for free? That’s awesome! Tons of professional and amateur photographers alike shoot time-for-pictures (TFP!). At the end of that exchange, the goal is that everyone gets to benefit from the other’s talents, and everyone gets a benefit as a result! Community rocks. We all contribute, we all rise.
But what about when someone else is making money off your time? And, what about, in addition to the time you spent at the shoot, you also went and bought some materials or clothes, or bought a permit, or spent gas money getting out into nature to get the perfect light? What if you spent some extra time in Photoshop to get everything just right?
Okay, so what is Copyright?
Copyright covers many different types of works, including photography, videography, other visual media (paintings, collages, mixed works), music, writings and other works. It does not protect ideas or non-tangible creations. Copyright is given to the original creator, or “author”, of the works and gives them complete discretion about how the work is used for a limited period of time (usually 70 years). This includes where it is reproduced (both physically and digitally) and any derivative works made from the original. In the world of photography, the Photographer is considered the “author” of the work, and is automatically granted copyright as soon as the image has been taken (though registering with the copyright office is still important since certain protections are forfeited after 3 months). Everything you need to register your work with the copyright office can be found here.
Use of the work is usually controlled by a License, which grants an individual or party legal permission to use the image(s) within specific parameters. Sometimes a license is part of a larger contract and sometimes it stands alone.
So let’s talk about a few scenarios.
Let’s say someone wants to hire you to shoot their wedding, family or senior photos, party, or any other shoot which they would use the images for personal use only, and don’t intend to monetize or publish the images beyond their own social media pages. It’s typical, beyond a basic agreement outlining other expectations (like a wedding contract), for the photographer to issue a Personal Use License when delivering the photos. Generally, this will give the client legal permission to duplicate the images (physically and digitally) as long as they’re being used for personal use only. This usually excludes things like model portfolios, submission-based publications, commercial licenses or reproduction by persons not listed on the license. It might also specify if and how the client should credit the photographer when posting on their social media channels.
It’s common for these to be very standard and short – mine is less than a half-page and is included in my delivery package. A contract doesn’t need to be complicated to be effective! A simple, well-defined and easy-to-understand contract makes it much more likely that all parties will feel like it was a valuable and fair exchange at the end of the project. We all want happy collaborations and clients, right?
Okay, so that one’s pretty easy, since it’s a very clear exchange, and the purchasing party is paying the photographer for their time, but not making money off the images themselves. But what if you take some pictures, possibly through a collaboration/time-for-pictures exchange, and a brand wants to share an image or use in a campaign in some kind?
In my opinion, in the simplest terms, if the party who wants to use the images will make money off the content, the creators of that content should be getting compensated. This isn’t about negativity, or discouraging young creators from drawing inspiration from creators they admire, or even strategic partnerships. This is about people getting paid for content they didn’t pay for. It’s about making sure everyone’s contributions and benefits are fair and proportional. You might disagree with this; if so, okay, I guess that’s fair, but I hope you understand your rights before making that decision.
Let’s talk about the ideal scenario.
A brand comes across an image they like on the web, or Instagram, or Facebook, and want to post it to their own social media channels. To do this, the right way, they need to reach out to the copyright owner, which is usually the Photographer, and ask for permission. The photographer and brand will work together to determine the specific use terms allowed, and then create a contract that clearly defines these limits and the compensation the photographer will receive in return.
Again, these can be short and sweet! Contract does not equal complicated! The important thing is to clearly define expectations so everyone can benefit from the exchange. If it’s a simple exchange of $25 for a single social post of an image you took, and you both find that fair, great! Everyone should agree that those are the circumstances allowed and feel good about it!
For the sake of this post, let’s say the brand LOVES your pictures (go you!), and wants to use them for more than one social post. Many factors, like the size of the brand, and extent of the use will impact how much the copyright owner is compensated. Below is a super high level overview of what would be defined in a commercial use license.
Parties – clearly define the parties included in the contract. In our example above, this would be our brand and the photographer.
Type and format – where will the image(s) appear (Instagram, Website, Print or Online Magazine, etc.) and what format will they be distributed in (Digital, physical, or both)?
Territory and Duration of use – if in print, where are the images granted for use (US only, Global, etc.). Common duration terms include 6 months, 2 years, or perpetual (forever).
Placement – placement defines the positions the works may be used in and how many times. This may be one-use per image, per platform, or a magazine cover placement plus one-use in the accompanying article.
Constraints – these may include anything that is specifically prohibited, such as derivative works or sizing above/below specific terms.
Requirements – these include specific items that do not fall into a Permission or Restraint, such as a requirement to provide credit to the Photographer.
Terms – when and how are payment/images to be delivered?
Image Information – any other specific terms not defined above, accompanied by the files agreed-upon for use.
“Wait, brands have posted my pictures without asking me first! What does that mean?” Well, put simply, they’ve have engaged in copyright infringement. Just to make this perfectly clear, this is true whether they credited you or not. AGAIN FOR THE PEOPLE IN THE BACK: Crediting the photographer does not inherently mean there is not copyright infringement. It does not make it okay, and it is a business’ responsibility to operate legally – the obligation falls on the brand to know the rules and you to hold them accountable.
It used to be common knowledge that companies need to pay for content. Increasingly, brands are less and less willing to pay for quality content when they can source it for free. If a brand posts your photo and you’re just happy to have them share it, cool – you’re placing value into that exposure or maybe you are just a big fan and okay about not getting paid. That’s fine, though I hope that’s an informed decision. That doesn’t mean they haven’t infringed on your copyright, it just means you’re not going to do anything about it.
What about if they post it without permission, but you come to a quick agreement to settle the disparity? Even better, everyone is getting a tangible benefit out of the exchange, even if it wasn’t the best way to go about it.
Almost all situations will fall into one of the scenarios above, but have you ever heard one of the many nightmare stories about brands using images or designs without permission, either for promotion or directly as a design on their products, and then refusing to pay the artists? What if it’s a major brand that stands to make substantial amount of money from your work?
“What should I do if someone posted or used my work without my permission and I want them to stop?” Well, first, you need to send a cease-and-desist letter, and then, if they do not stop, you need to contact a copyright lawyer. It’s important to note that legal fights are expensive, and everyone picks their battles. But if the losses are significant, it may be worth it to protect, and that is why it is so important to understand your rights. Copyright and contracts exist to prevent people from being taken advantage of, and we need to know our rights in the first place to make informed decisions about what kinds of use are okay with us and what are not.
Copyright is the legal mechanism that enables your works to have value. It is both how you leverage your work and how you protect it.
If there’s one thing I hope you take from this blog, it’s that your time and energy is valuable. Even if no-one exchanges money at any time as a result of the shoot, everyone should feel as though their contribution was fair and proportionate. Contracts are all over the place and aren’t meant to make your life harder, they’re meant to make sure everyone knows what to expect, so that everyone can have a good experience. They’re often a lot simpler and less scary than we think!
When we recognize the value we each have to offer, we all rise together, and we all contribute to an environment where creatives get paid for their time, investment and energy. THIS is the meaning of community over competition. Getting paid is a GOOD thing. YOUR TIME IS VALUABLE.
Kassidy Renee Paige is a travel and lifestyle photographer based out of St Paul, Minnesota. She attained her Bachelor of Music Business in 2015 and works for Pivot Payables, Inc. specializing in project management and sales operations.