Copyright & Licensing
A client-facing primer on understanding copyright (image ownership) and licensing (image use) in the world of photography.
I created this page to help my clients, and other photographers' clients, understand their rights when it comes to the photographs that they want to use. It's not as obvious as it might seem, so this page aims to explain the process as clearly as possible—to avoid confusion and uncomfortableness between photographer and client. This is written in the United States however the principal and spirit is the same around the world.
In the briefest of terms, when the client hires a photographer to create their images (document an event, create a portrait, shoot a product, it doesn't matter) , they are paying for the photographer's creativity, expertise and experience. They are not, however, paying for the right to use the image. The right to use the image that is created is a separate agreement. Depending on the photographer this may be wrapped up into one price, or they may charge for one and not the other, but regardless of how it shows up on the invoice, there are two steps — creation and licensing.
The client may not even ask the photographer to create an image, but choose to use an existing image. In this case they are only licensing, which is a lot easier to understand. For this page though, we'll be discussing the everyday situation where a client hires a photographer to produce an image that they can then use.
Let's start with more advanced definitions.
Let's first address copyright. Copyright (not copywrite) is the RIGHT to COPY an image. This term was written long before we had copy and paste on our computers, so it's not that kind of copy, but it means to create a copy that can then be distributed. Whoever owns the copyright has the right to make a copy of an image, and distribute/sell/license/give away that copy. Only one person/entity can own the copyright, so that means no one else on the planet has the right to do this. Copyright can be bought and sold. U.S. Copyright law was established in 1976 and was created to protect the rights of the person who created the work (in our case, the photograph). In the case of photography, copyright law is very clear and simple — the photographer owns the copyright.
There are only two situations where the photographer does not own the copyright. The first is when the photographer is a salaried employee of the client, meaning their employer is providing medical insurance, paid vacation, a retirement plan, and all the other benefits of employment to the photographer. The company is also paying for the studio, the cameras and lighting and computers and software, transportation and travel expenses, and anything else needed for the photo (models, makeup, locations, etc.). The photographer pays for none of this out of his own pocket, and is paid a fixed salary whether they are shooting or not. In this case, the company owns the copyright to the photos that the photographer creates.
The second is called "work for hire", and this means that there is a written agreement in advance that the work created by the photographer will be owned by the client. This is commonly only found in very simple projects with minimal creativity required, where the client is typically asking for something very specific, with a very precise deliverable. Once the shoot is done, the photographer often hands over the images and walks away. This is not creative work, and is not well paying work, but it has it's place.
Licensing is paying for the right to use something in a very specific way. The license will determine everything about the usage — the duration, the location, the frequency, the size, and more in which it may be used. Licensing is not unique to photography. When you "buy" music or a movie, you aren't really buying it. You're paying for a license for personal use. You have the right to listen to or watch that as much as you want, and your friends can be there too, but you don't have the right to give a copy of that to your friend (see, you have a license, but not the copyright) to take home. You also can't charge people to watch the movie, or play the song at an event you're charging admission to. Radio stations and movie theaters pay a different (and much higher) licensing fee to have the right to display that music or movie to a larger, paying audience (in the case of radio, the advertisers are paying that bill for you). The same goes for software. You are paying for a license to use the software, usually on just one computer. You do not own the software, you can not give or sell a copy of it to someone else (you can sell it and not keep it, therefore transferring the license, but you can't sell it and still use it yourself, too). You are paying for the right to use it, but that's it.
The same goes for photography.