Opinion

A client (a commercial photographer) recently asked me whether it was ok for him to use photos on his website and Facebook page which he had been paid to take. He (incorrectly) assumed that as he had taken the photos he could use them how he wished. However, because he had been paid to take the photos, he didn’t own the copyright in those photos and therefor couldn’t use them. 

If he had wanted to use the photos that he had taken, he would have needed to make it clear in advance (by written agreement or through the terms and conditions on his website) that he would retain ownership in the copyright in the photos.  Alternatively, after taking the photos, he could have obtained the express written consent to use them from the person who paid him.

Ownership

My client’s assumption was, however, understandable.  Everyday we take photos of our kids (looking cute), our pets (wearing hats) and our surroundings (looking spectacular) and post them on our Facebook pages for the world to see (and comment on).  And in most cases that is absolutely fine.   My free time, my camera, my child (you took it, you own it, you use it).  However, it is not always so cut and dry.

The question of who owns copyright in photos can often be an area of conflict.  The following are important questions to ask:

• If I took it, do I own the copyright in it?
• If someone else took it for me, do I own the copyright in it?
• If I didn’t take it, is it still ok for me to use it?
• If I took it and know I own the copyright in it, can someone else still use it?

This article will give you some assistance in answering those questions.

If I took it, do I own the copyright in it? / If someone else took it for me, do I own the copyright in it?

The general rule is that the person who took the photo is the first owner of the copyright in it. However, there are exceptions to this rule, most notably when the photos have been taken by an employee or when you pay (commission) someone to do take photos for you:

1. Employees:  If the photographer is an employee acting in the course of their employment, then their employer will own the copyright in the photo (unless the commissioning rule applies).
2. Commissioning Rule:  If a photographer has been “hired”, then the hirer will likely have commissioned the photos and will therefore own the copyright in them.

If I didn’t take it, is it still ok for me to use it?

If you have paid a professional photographer to take photos for you, you should check the photographer’s website, or any contract that you signed, to see whether the photographer retained ownership of the copyright in your photos.  If they did, then you may have to get their permission before you can use them. 

Likewise, think twice before you start copying and pasting photos from the internet into your next PowerPoint presentation.  Just because you found the photos on the internet, it doesn’t mean that they are no longer protected by copyright! 

Be careful what you take photos of.  Only the owner of a copyright has the exclusive right to reproduce the copyright work.  Photographing a copyright work amounts to reproducing it, so you need the prior permission of the copyright owner before you take your photo.

If I took the photo and know I own the copyright in it, can someone else still use it?

When you create a Facebook, LinkedIn, Twitter or other social media account, chances are you are handing over the Intellectual Property in the content you post to that organisation.

For instance, when you open a Facebook account, the terms and conditions provide that you grant Facebook a license to use your content (photos and video for instance) in any way it sees fit.  Facebook’s license doesn’t end upon the deactivation or deletion of your account either.  Content is only released from this license once all other users that have interacted with the content have also broken their ties with it (for example, a photo or video shared or tagged with a group of friends).  The other Social Media platforms have similar terms and conditions. Scary stuff!

So, if you have a photo that you don’t want other people to profit from (think Grumpy Cat), best not post it on Facebook until you are sure your Intellectual Property is sufficiently protected!

Get it in writing 

If you want to ensure you retain ownership of the copyright in photos that you take (or get taken for you), make sure you get it in writing.  While there are (as discussed above) certain default rules, if you get it in writing, there is no room for argument.  Carefully read any fine print before you post photos on the internet to ensure you are not unwittingly handing over ownership to somebody else and check the terms and conditions of any professional photographers which you engage so you know who has ultimate ownership of your photos.

Happy snapping!