Whether you work in portraits, landscapes, advertising or adventure, photographers face certain legal questions they need to consider: Who owns the photos you take? Do you need a model release? Where can you legally take photos and where can you not? And what about taking photos with labels, logos or artwork in the background? In most cases, avoiding these legal issues is not difficult, it just takes a little awareness and forethought.
WHO WILL OWN THE COPYRIGHT?
The good news is that unless you are an employee taking photographs as part of your job or you specifically agree otherwise in writing, you almost always own the copyright in the photos that you take, just by taking them. The bad news is this may come as a surprise to your clients. To avoid any conflicts down the road, whenever you’re hired for a specific gig you should be clear with yourself and your clients about who owns the copyright, and what the other party is allowed to do with the photos. For example:
If you keep the copyright, is the client allowed to make their own copies? To post the photos on Facebook? Or to use the photos in a future ad campaign if it’s for a business?
If the client will own the copyright, are you allowed to keep copies and use them for your portfolio, to display in your studio, or to use on your website or in advertising?
Determining who owns the copyright is also important for determining who will take responsibility for registering the copyright, particularly if there is any concern that others may try to copy or use the photo in the future. Probably not an issue for family photos, but a landscape or adventure photo may have licensing value to protect.
DOES IT MATTER IF THERE ARE PEOPLE IN THE PHOTO?
If your photographs include people, there are several potential legal issues that you need to think through.
RIGHT OF PUBLICITY
The first issue is that each of the individuals in the photographs may have a right of publicity. The right of publicity protects individuals from having their images used to promote or endorse anything if the individuals are recognizable in the photo. This doesn’t just apply to using a celebrity’s image without their consent. Imagine an extreme scenario – using a photograph of a devoted vegetarian and animal lover to promote the local hamburger joint without their consent – and you can see why individuals may want to have some say in how their image can be used.
The exact scope of the right of publicity, however, varies from state to state. Oregon, for example, does not have a statutory right of publicity. Courts have suggested that a person with an economically valuable identity – i.e., a celebrity – may have a cause of action under common law if their image is used for commercial purposes without their permission, but it’s unclear if most people would be able to assert such a claim. New York, on the other hand, does have a statutory right of publicity which explicitly extends to every living individual, celebrity or no. And California not only has a statutory right, but it even extends the right to the deceased.
RIGHT OF PRIVACY
Separate from the right of publicity is the right of privacy. Generally speaking, if you take a photograph of someone in a way that intrudes on their private affairs and then publicize it without their consent, you are invading their rights. For example, a haunting photograph of a person shooting heroin in a private room might be great art, but it also exposes the individual’s drug use to the world. If a photograph would mislead viewers into seeing the subject in a false light (e.g., an individual entering a rehab center when they were merely working or volunteering there), it may also be inappropriate.
MINORS
First, let’s dispel a common myth – there is no all-encompassing ban on taking photographs of minors without parental consent. So photographs of a park or wilderness area that happen to include some kids in the background are usually fine. However, kids have the same rights of publicity and privacy as adults, and while adults can sign a release and give permission to use their image, minors typically can’t. That means that a parent or legal guardian needs to sign any releases on behalf of anyone under 18.
SHOULD I GET RELEASES?
Speaking of releases, what’s the easiest way to avoid potential issues with rights of publicity and privacy? Ask any individuals who are recognizable in the photographs to sign a release. Even if you don’t currently plan on using the photo for commercial purposes, plans change. And you may want to use the photo for your own advertising or promotion down the road. A release doesn’t obligate you to use the photo, but it keeps your options open.
A release form does not need to be 10 pages long and filled with legalese. The important components are a description of the photo (e.g., photos at Riverbend Park taken February 21, 2020) so that it’s clear which photos the release applies to, a description of how the photograph may be used (which should be as broad as the subject is OK with), and a statement that the subject agrees to this use, with his or her signature and the date. If the subject is a minor, it should be signed by a parent or legal guardian.
Sample release forms are readily available on the internet or from DIY legal sources, but make sure you actually read the form and modify it to fit your situation. The language of a release form is not carved in stone, and depending on the age and source it may be totally inappropriate for your use. For example, if you plan on posting the photograph on Instagram and the release says nothing about social media or the internet, it may not do what you want it to do.
DO I NEED PERMISSION TO SHOOT AT A LOCATION?
If you are shooting outside of a studio, you need to consider whether you have permission to do so. Shooting on private property (including private places open to the public like stores, amusement parks and sporting events) without permission is potentially trespassing, so you should get permission first and respect posted rules that prohibit photos. Plus, since 1990 buildings can themselves be copyrighted, so your photographs of a private space may be infringing the architect’s copyrights (see below).
Shooting on public property (like a park) is generally OK, with a couple of important caveats. First, certain public places may restrict or prohibit photographs, especially courthouses, military bases, airports and museums. In some cases this is an outright ban, and in other cases only commercial photo shoots are prohibited, so you need to know and understand the rules.
Second, shooting in a place where someone has an expectation of privacy (such as a health clinic, an AA meeting, or a bathroom) will almost certainly run afoul of the right of privacy (see above) for anyone in the photograph.
Third, even if photos are allowed you may still need a permit, particularly if the shoot will interfere with daily operations (such as holding up traffic, blocking a sidewalk, or creating any sort of potential hazard).
IS IT OK IF THERE ARE TRADEMARKS OR COPYRIGHTED WORKS IN THE PHOTO?
Just as it’s important to protect your rights in your work, it’s equally important to respect others’ rights. That means exercising caution when your photographs include someone else’s copyrighted works or trademarks. Incidental use of copyrighted works may – or may not – qualify as fair use, but because fair use is highly fact dependent, there are no bright line rules to assure your use is OK.
Similarly, a photograph which happens to include a trademarked name or logo may qualify for fair use, but it would heavily depend on how the work was used, and whether the use may mislead a viewer into believing that the trademark owner was involved in or approved the photograph – and you won’t know for sure if your use qualifies as “fair use” until a judge or jury decides the question many tens or hundreds of thousands of dollars down the road. Plus, fair use depends in part on how you are using your photograph, so relying on a fair use defense can hamstring you in selling or licensing your work in the future. To the extent possible, avoid the issue by removing copyrighted or trademarked works from the shoot or in post-production, or getting permission ahead of time.