About image copyright, ownership, and licensing
Copyright and licensing as it relates to commissioning photography can seem like a tricky and sometimes contentious topic, but it doesn’t need to be. The most important thing is that both the client and photographer understand and agree on what’s been paid for and how each party is allowed to use the images. That all comes down to what’s in the contract for the job, which can vary widely of course. So I’ll try to address as many of the obvious copyright and licensing questions that come up, and hopefully make things a bit clearer.
Very generally speaking, in the UK a freelance photographer owns the copyright of all their work whether they made it ‘on spec’ or it was commissioned by a client.
The photographer will then license the images for use by the end-user, whether it’s someone licensing ‘on spec’ work from a stock photography site, or the client who commissioned the work in the first place.
Copyright can be purchased and transferred, but for almost all of our clients it would be a waste of money as they don’t really need it. Why don’t they need it? As they love to say on YouTube, “let’s dive in”…
What is copyright?
In very simple terms, whoever owns the copyright owns and controls the images and how they can be used. Here’s a little more info from the Gov.uk website:
Photographs, illustrations and other images will generally be protected by copyright as artistic works. This means that a user will usually need the permission of the copyright owner(s) if they want to perform certain acts, such as copying the image or sharing it on the internet. The person who creates an image (“the creator”) will generally be the first owner of the copyright.
Who owns the copyright to commissioned photographs?
It varies around the world but according to UK copyright law it resides with the photographer from the moment the image is made; here’s the details on the UK government website. There’s a couple of exceptions which we’ll look at below.
Why don’t you recommend buying the copyright?
Most of our clients don’t need to spend money buying the copyright because they receive a license that permits all the use they need, included in the package price.
Owning the copyright technically grants the right to use and profit from the images in any conceivable legal way, which raises the value of the images considerably. But most clients just want to share on their socials and run some PR, all of which we include in our fees anyway. So there’s no point in them paying way over the odds to acquire usage rights they don’t need.
If the photographer owns the copyright, how can the client use the images they commissioned?
After 20 years in business we understand what our clients generally want to use their images for, and we provide a generous license that covers all that use.
Usually this license is provided on a ‘Sole User’ basis, meaning that nobody else outside of the client and us can use them; and our use is typically limited to our own portfolio, entry to competitions, etc.
Does the client need to check with the photographer every time they want to use a photo?
Not if they’ve been licensed fairly originally, and the client sticks to that use. We’ve served hundreds of clients so it’s in our interests to ensure they don’t have to keep asking for permission! Our standard image license avoids that by allowing just about everything each type of client will normally want to do with their images.
What use is included in the standard license?
Here’s what I generally include as standard for every shoot – for event clients this is the full usage license, and then other types of client (e.g. PR & marketing clients) may receive additional licensing in line with what they usually need:
- in-house use – i.e. the public never sees them, such as your company intranet
- organic PR use – this basically means PR use that you have not paid for. So for example you’re welcome to use in organic posts on your own social media, emails to subscribers or clients, free pamphlets/flyers/prospectuses, etc. Paid ad campaigns aren’t ‘organic’ PR so that use would cost a little more, depending on the exact details on the campaign.
- credited editorial use – editorial use is defined as ‘use relating to events, information, commentary and analyses that are newsworthy, a matter of public concern or of general interest to the public’ and covers organic use in the press – for example, a newspaper article, or a magazine article relating to the project in question. Paid insertion, also known as ‘advertorials’ is not included here. I require a photographer credit in all cases of editorial use.
An event client, for example, may later decide they want to run a brand ad campaign using images from an event. That’s not covered so they would indeed need to contact us to extend their license. But that’s something very few event clients have ever needed, so it doesn’t make sense to make every event client pay for it as standard.
For PR & marketing shoots I also include:
- at least two years advertising use, in one form of media. This is extendable at booking depending on how frequently the client wants to refresh their PR imagery or how many media they know they’ll be advertising in.
What about commercial use?
Commercial use can be defined pretty widely but for our specific purposes it typically means using images in a commercial project. For example, publishing them in a commercially available book, using on product packaging, selling the images yourselves, or exchanging the photos or access to them for some other form of recompense.
If the whole point of the commission was to create images for this use then we’d price that into our fees from the start. Otherwise, we price for our standard use and then anything you need later can be paid for if and when you need it.
Some examples of commercial use that warranted a license extension
I shot an event for Virgin attended by Sir Richard Branson during which I got some nice candid images of him on a rooftop looking out over London. Virgin paid our usual event rate, which includes all the in-house and PR use they usually need.
However, a year later they wanted to use one of those lovely images of Sir Branson in an advert for Virgin Money which ran in the national press. They got in touch and licensed the single image they needed for a fair price based on the size of the reproduction, the spread of media it would appear in, and the duration of the campaign. That’s really easy to arrange.
A few months after that a publisher approached me, wanting to license another couple of images for use in Sir Branson’s updated autobiography. Again we negotiated a fair price based on two small reproductions in the book, the print run, and the territories it’s for sale in.
In both cases nobody paid more than they needed to.
However, if Virgin had wanted full ownership (i.e. to own the copyright) of all the images from that event I’d technically have needed to charge them the potential fees for commercial use of every single image – or at least a sum I’d be happy to take to forego any future licensing fees. And that would have been considerably more than the total price of the tailored licensing they negotiated later.
Is there a risk we’ll find our images being used by some other company later?
As standard we do not license our work for one client to an unrelated client later, and there’s a clause in our terms specifying this restriction on our use.
There are a couple of exceptions to this:
- sharing with other suppliers at the event: e.g. after a Christmas party I might, with the client’s permission, share photos with the venue, caterers, or entertainers showcasing their services, which they can use on their website or social media. The suppliers are strictly licensed to only use images appropriately, and our client can veto this use entirely if they wish.
- distributing via Alamy, Getty, etc: e.g. after I photograph a conference with a public interest angle (perhaps a political event) the client may occasionally permit or even require me to also share them to a licensing site like Alamy or Getty with certain terms that allows the media to license the images for use in their own coverage. However, it’s extremely rare for us to distribute our work like this.
But outside of these examples (and the second one is extremely rare due to not being press photographers) we absolutely would not, for example, license photography of food at one event to a completely different caterer for their own advertising use. Nor would photos of guests enjoying an event end up being used as stock photography for some other event company to license.
What are the exceptions to the rule that the photographer holds the copyright?
If an image was created as part of the photographer’s full time staff employment then the employer will generally own the copyright. So for example if they’re a staff photographer for a newspaper, then the newspaper owns the copyright to all the photographs created by that photographer in service of their employment contract.
On the other hand, sometimes the photographer may not be the person who ultimately presses the shutter release button, but they are still the copyright holder according to the relevant contracts for the shoot. For example, a photographer may make all the creative choices in setting up a shot on location, but in the moment it was their assistant that actually pressed the button; in such circumstances the copyright typically still remains with the lead photographer.
Or, a photographer may contract an associate photographer to shoot an event for their client in their absence, and in such cases the original photographer may retain the copyright in the associate’s work at that event – but this should be contractually agreed prior to the shoot.
What about ‘works made for hire’?
The phrase ‘works made for hire’ seems to be more commonly used in America, and covers two definitions:
- works created by an employee as part of their regular duties (e.g. the staff photographer example above)
- works created as a result of an express written agreement between the creator and a party specially ordering or commissioning it
This second definition may give the impression that all our commissions can be defined as ‘works for hire’. However, it only applies where both parties agree in writing that it’s a ‘work for hire’ arrangement, and we typically don’t accept such commissions. The only work we’ve ever produced in a ‘work for hire’ arrangement is our unit stills work on movie sets, where copyright usually does belong to the production company.
So what is the client paying for, if not the copyright?
In very simple terms the price of our services is linked to:
- the time spent planning, shooting, and editing
- the equipment used and expenses incurred
- the skill we’ve accrued over 17+ years in business
- the value of the images to the client as informed by how they want to use them
What determines the value of the images?
Basically, it’s informed by how they’ll be used. The more important the images are in selling a brand or product, or otherwise driving profitability for the client, the more valuable and expensive to commission they are.
For example, most of our event clients want to share the event photography on their website, social media, company newsletters, etc. Obviously this helps promote the next event, and can help raise brand awareness when they’re shared on social media, sure, but ultimately these sorts of images are simple to produce and have limited potential in directly driving profitability.
Whereas our PR & marketing clients typically want images that’ll help raise awareness of a product, campaign, or business, often through advertising. The images are intended to directly support their profitability, and much more work goes into their creation. So overall they have a greater value than event images, costing more to commission.
Some commercial use cases impart even more value by allowing clients to generate direct profit from the images: an event client may want to sell the images to their guests directly; a venue client may want to sell postcards, or include images in a premium souvenir program. Most of our clients don’t need that so it’s not included in our standard usage license. But it’s no problem to add it on request, as and when it’s needed.
What other kinds of use are most expensive?
In general it’s commercial use, for example:
- using images in a commercial product (such as in a book or a film, or on packaging)
- selling images directly (e.g. prints, postcards, or the digital image itself)
- less overt ‘selling’ of images, such as sub-licensing them to a third party for commercial gain or recompense
Can the client buy the copyright at a reduced price if they promise not to make commercial or advertising use?
Unfortunately not; copyright is all or nothing. In this case you’d be perfectly covered by our standard license.
I’ve found that when a client doesn’t need the copyright but asks for it it’s usually because they want peace of mind – to avoid having to check what they’re allowed to do, or mistakenly making use they should have paid for.
This is why we’re generous with our standard usage licenses. We know what most clients need and price for it from the beginning – I don’t want to be checking up on clients just as much as they don’t want to be checking in with me every time!
What if a client thinks they might need commercial use later but doesn’t know any of the details yet?
Commercial use can vary so much, so we can’t really price for it until we know the details. The solution here is just to pay for what you KNOW you need now, and later on if you do need specific commercial use come back to us and we’ll license that specific use, ensuring you only pay for what you need.
If you have an idea of the planned details (e.g. “it’ll probably be one image, half broadsheet page, UK only, for three months”) we can definitely work with you on a quote so you can manage budget expectations until you know the final details.
What will it cost to buy the copyright and own the images?
Charging for every single possible use of every image could quickly add up to an astronomical invoice, which we don’t want to charge anyone. So instead we’d consider the commercial viability of the images, how many are included, the most likely and profitable ways they could be used, and a reasonable lifespan, to negotiate a price that works for everyone.
That said, photos of a local business’s product range has much lower commercial viability than portraits of a world famous musician, for example. So the musician would pay considerably more for the copyright.
Where a global brand wants full copyright it’s not uncommon to charge four, five, even six figures, but it would be worth it to them.
What if you want ‘peace of mind’, but can’t afford the copyright?
Assuming the client is as honest as they can be about any commercial or advertising use when they commission the images, the license they receive should provide peace of mind.
If a client goes on to make some use they didn’t pay for, mistakenly or otherwise, we’ll address it on a case by case basis. We use a couple of services to scan the internet for our images and have found them in use in a few unexpected places, but it’s usually been resolved with a request for credit – no illegal commercial use yet!
In conclusion
Almost none of our photography clients really need the copyright and will be just fine with the tailored usage license that comes with them. Even if they think they’ll want to sell images later or use them in a commercial product it’s almost always considerably cheaper to buy a license for that, rather than the copyright itself.
If you have any questions at all about photography copyright please do ask – you can contact me here.