Who owns the pictures?

Models keep telling me they own the pictures a photographer takes. Ladies, by law the pictures a photographer takes are owned by the photographer. The photographer owns the copyright. Even if you paid the photographer for the photo shoot. The only way you own the images is if the photographer gives you a document stating he relinquishes his rights to his images and gives you the copyright to those images. Otherwise, the images belong to the photographer. If you want to publish his images he has to give permission to the publication via a release form.

Photography and Copyright Law

An interview with Carolyn E. Wright of photoattorney.com

Q: The term “Copyright” is often misunderstood. Especially when it comes to art and photography. The first and most obvious question would therefore be;   What is Copyright?
In simple terms, copyright for photographers means owning property. With ownership, you get certain exclusive rights to that property. For photographic copyrights, the ownership rights include:
(1) to reproduce the photograph;
(2) to prepare derivative works based on the photograph;
(3) to distribute copies of the photograph to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) to display the photograph publicly;
Found in the U.S. Copyright Act at 17 U.S.C. 106 (http://www.copyright.gov/title17/92chap1.html#106)

Q: What is the difference between copyright and creative commons?
Creative Commons is a type of licensing. Licensing means that you grant others some of the rights that you have to the photograph. For example, you may allow someone to reproduce your photo in the December issue of a magazine. You still own the copyright to the photograph, but you allow someone else to use a piece of it. Creative Commons provides different licensing packages without pay. The packages allow some flexibility with your licensing, such as whether you allow commercial use of your photo and whether you require certain attribution, such as your name or website, with the use.

Q: Does a creative commons license mean that I can use the photograph any way I want, for free?
If you offer licensing of your photo through Creative Commons, someone may use your photo for free but that person must follow the conditions of the license that you select. The Creative Commons license options include: “Attribution” (This license lets others distribute, remix, tweak, and build upon your work, even commercially, as long as they credit you for the original creation); “Attribution-NonCommercial” (This license lets others remix, tweak, and build upon your work non-commercially, and although their new works must also acknowledge you and be non-commercial, they don’t have to license their derivative works on the same terms); and “Attribution-NonCommercial-NoDerivs” (this license is the most restrictive of our six main licenses, only allowing others to download your works and share them with others as long as they credit you, but they can’t change them in any way or use them commercially).

Q: Who owns the copyright in a photograph once it is taken?
In general, when the shutter is released, the photographer who pressed the button owns the copyright. An exception is when the image falls into the “work-made-for-hire”(also known as “work for hire”) category. A work-made-for-hire relationship is created in two situations: (1) the photographer is an employee hired to take photographs for the employer—an example would be a photojournalist who is an employee of a newspaper but not a wedding or portrait photographer who is hired for one event; or (2) the photographer is hired to provide photographs for collective works or compilations and signs a written agreement that specifically states that the work is to be considered a work made for hire. Therefore, freelance photographers are subjected to work-for-hire status only when they agree to it contractually.

Q: What is the Digital Millennium Copyright Act?
The Digital Millennium Copyright Act (DMCA), enacted in 1998, implemented treaties signed at the 1996 World Intellectual Property Organization (WIPO) Geneva Conference. It addresses many issues, one of which affects photographers directly. The DMCA states that while an Internet Service Provider (ISP) is not liable for transmitting information that may infringe a copyright, the ISP must remove materials from users’ websites that appear to constitute copyright infringement.

Your copyright does not have to be registered with the U.S. Copyright Office for you to take advantage of this provision. If you find a website that is using one of your images without permission, contact the hosting ISP and report the infringement. My article here: http://www.naturescapes.net/docs/index.php/articles/314 tells you how to request that your image be taken down from a website.

The DMCA also provides for certain damages when your work is infringed. If the infringer has removed your copyright management information, such as your name, contact information, or copyright notice, from your work in an attempt to facilitate or conceal its infringement, the infringer may have violated the DMCA. Section 1202(b) of the DMCA prohibits the removal of “copyright management information” in certain circumstances. It states in pertinent part:

No person shall, without the authority of the copyright owner or the law—(1) intentionally remove or alter any copyright management information . . . . knowing, or, with respect to civil remedies . . . having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any right under this title.

The statutory award for each violation of Section 1202 ranges from $2,500 to $25,000. The DMCA is another important tool in the photographer’s legal toolkit.

Q: Is copyright violation a crime?
The Copyright Act includes elements of crimes related to copyright. http://www.copyright.gov/title17/92appg.htmlThe government usually prosecutes only the most egregious cases, such as counterfeited goods.

Q: How can I get permission to use copyrighted photography?
You may obtain a non-exclusive license from the copyright owner orally, but exclusive licenses must be in writing. It’s always best to put license agreements in writing, even if it’s only an email.

Q: If an illustration of a photograph is made and used commercially or editorially, is it an infringement of my copyright?
Yes, if it is deemed to be a derivative work and the illustrator has copied your copyrightable elements.

Q: If a photographer hires or gives permission to someone to retouch his/her images, does he lose ownership of the images?
No. As long as the photographer does not relinquish his copyright to the images, the images continue to be owned by the photographer. The retoucher can work on the images because the photographer has given him/her permission to do so. Usually, a contract is drawn between the two parties specifying what the retoucher can and can’t do.

Credits:
This information has been put together by Carolyn E. Wright of the Law Office of Carolyn E. Wright, LLC, and published by kenkaminesky.com