We are often asked to explain copyright to our clients and photographers. Here's a quick Question/Answer breakdown of copyright questions we've been asked.
Q: Who owns the copyright to an image?
A: Unless otherwise agreed to in writing in advance, upon the release of the shutter, the photographer owns the copyright.
Q: What does it mean to own the copyright?
A: Owning the copyright means the photographer/copyright holder, have the right to determine who can license and publish the image.
Q: Does owning the copyright mean the photographer can post, license and sell the image?
A: Not always. Sometimes photographers are granted access to photograph an event in the agreement that the images can only be used for certain purposes. A league which grants a photographer a credential or press pass to a game can limit the photographer's licensing to editorial use for the credentialed outlet. A couple can hire a photographer for a wedding with the understanding that the images are for their private use, not to be made publicly visible so their guests can feel comfortable dancing and celebrating without the worry that the image will appear publicly or sold to an editorial outlet. A commercial client can hire a photographer with the agreement that the photographer will not make the image public or available for editorial release until a certain time period after the client has published the image, considered an embargo on the images. Any image that depicts individuals, would need a model release in order to be licensed commercially. Even with these limitations that can be placed on the photographer, it does not imply that the client or the league own the copyright.
Q: Is it acceptable to publish a photographer's image without permission if I keep the watermark or give photo credit? ("Publish" includes social media posts)
A: No. The watermark and photo credit are placed so that individuals know where to go to appropriately license the image for themselves or their organization. Images posted with or without watermark, with or without photo credit, without permission of the photographer are considered copyright infringement and the photographer can pursue damages and legal action if they find their image posted without permission.
Q: Does an organization need to own the copyright to publish an image?
A: No. The organization needs to have the licensing rights from the copyright holder. A photographer can grant nearly unlimited licensing rights to a client without giving up their copyright.
Q: Does hiring a photographer mean the organization owns the copyright?
A: No. Unless specifically agreed to in writing, the copyright still remains with the photographer. The organization is hiring the photographer for their creative services and the licensing rights for designated use.
Q: What are the price differences in hiring a photographer for a copyright transfer and hiring a photographer for licensing rights?
A: In short, dramatic. If the organization is requesting to own the copyright, now the organization controls the rights (and receives any payments) for the images being published and licensed. If the photographer maintained the copyright, they could license the image for use by the client (or potential other clients) to a magazine, a newspaper, in a print advertisement, on a billboard, online, etc., the organization needs to pay for the opportunity cost of all of those potential sales that the photographer cannot pursue if they sign away their copyright.
Q: As a photographer, how can I ensure my copyright is not violated?
A: Have a written agreement for any event you photograph whether it's as a volunteer or as a paid assignment.. Ensure you and any client who hires you have an understanding about what they can and cannot do with your images. Is your fee for the client to publish on social media, their website, use in an advertisement, will your byline be posted, and what are the limits in use and time? What is the understanding if the client later wants additional use? It's much easier to explain this in advance than try to clarify misunderstandings and violations after the fact. Also be careful about how and where you share your images. If a player asks for an image for their Facebook and you approve, ensure you explain to them it is ONLY for their Facebook and not for their website, or their sponsor. If you post an image online without a watermark, it's easy for others to save and post. It's much easier to limit access than to track down and pursue misuse.
Q: I have a photo from KLC fotos, can I publish it?
A: If you don't know whether you have the rights or not to publish the image, do not publish it. KLC fotos and the photographer may bill you for the fair use the image, send a cease-and-desist or potentially sue for the copyright violation. But we don't want to do that! Send us or the photographer a note, we can reference whether that image has been licensed to you or your organization and/or work with you to secure appropriate licensing terms. It is ALWAYS less expensive to pay for the license than to be charged for violating copyright.