Jessica Lamb recreates the '70s
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Photographer or model: Who owns the image?

As a photographer, protecting the images you create is critical to your success. Your photography is your product, your art and your brand. As a model, protecting your likeness and how it is used is critical to your success. So when a photo is made by a photographer of a model, who owns it?

And the answer is, the photographer.

Shortest article I have ever written. The end.

Copyright explained

There may be a little more to copyright law and image usage than that. But, in most situations, the moment a photographer presses the shutter button on their camera and creates an image, they own the copyright to that image. Copyright not only sets ownership, but also gives the owner the rights to copy, display, create derivative works (example, transforming a photo into a new original painting) and transfer any of these rights to others.

Straight from the authority on copyright law, the US Copyright Office, “copyright is a form of protection provided by the laws of the United States to the authors of ‘original works of authorship’ that are fixed in a tangible form of expression.” There are two important elements in that to understand:

  • An original work of authorship is a work that is independently created by a human author and possesses at least some minimal degree of creativity.
  • A work is “fixed” when it is captured (either by or under the authority of an author) in a sufficiently permanent medium such that the work can be perceived, reproduced, or communicated for more than a short time.

It is also established that copyright protection in the United States exists automatically from the moment the original work of authorship is fixed.” In other words, the moment you press the shutter, you own the photo.

Who can use the image?

Model: Morgan Casey

Be aware of intellectual property appearing in photos

The image above causes all kinds of problems for licensing. First, a model release is needed. But, her shirt also features a trademarked logo, covered under a completely separate set of laws. Logos and other trademarks may be used without permission of the owner as long as it isn’t being used “in commerce” and does not cause “consumer confusion.” So as long as no one thinks that we are selling whiskey, odds are this editorial use is OK.

Editorial vs. commercial uses

Under copyright law, the photographer owns the copyright and can use it for any editorial use without permission of the person in the picture. Editorial uses are works like this article, where you are sharing information, not selling something. A person cannot have their picture used without their permission for anything that sells or promotes a product or service. For example, if the company that made the outfit a model is wearing contacted the photographer and said, “Hey we want to pay you so we can put that picture in our ads,” that would be promotional use. The photographer would have to get permission, in writing, from the model to sell the rights to use a photo of that model.

Model releases

That is the purpose of a model release, so the photographer has that permission in writing to be able to sell their images without contacting the people in those photos each time. Most companies, stock agencies, etc., require those to buy or sell any photographer’s images.

Copyright infringement

Using that same example, let’s say the company finds the image and uses it in ads or on their website without the photographer’s or model’s permission. This is a copyright infringement. The artist can take a number of legal actions including pursuing civil damages or having websites taken down that feature the unlawfully used content (initiated via a DMCA Takedown Notice). The model could also pursue legal actions, usually called a “Claim for Unlawful Use of Name or Likeness,” which is protected under most state’s laws. For infringement cases, copyright registration of the images is a requirement. That’s a whole other set of posts.

Work for hire

If the photographer pays a model for a photoshoot, generally the assumption is the photographer owns the copyright and has permission to do what they want with the images. Even then, they still have to get a model release in writing to be able to sell those images for non-editorial (i.e. advertising/stock/marketing) type uses.

If a model pays the photographer for a shoot, for example, “to build their portfolio,” the photographer still owns the copyright, unless the photographer transfers ownership of copyright in a written contract. Typically, this is an agreement that says the model has unlimited rights as the person who hired the photographer to use the pictures as they wish. However, by transferring copyright, the photographer gives up all rights to use those images themselves. Usually, an unlimited license to “display” the image is more appropriate, as it conveys rights to the licenser, the model, to use the images in whatever way and for however long they wish. But this also allows the photographer rights to use their own work, and specify any uses which are not permitted.

In “Trade for Print” or TFP shoots, where neither photographer nor model is getting paid, the photographer still owns the copyright, and there is an agreement about who gets what pictures and how they can be used. This should always be in writing!

Review

In nearly all circumstances the creator of the artwork, the artist, is the owner of the copyright, and the ownership of it can only be transferred by that person, in writing. But, a model retains the right to deny certain uses of their likeness, unless they have signed a release giving up that right.

Fire Spinning Dragon Woman, Andrea
Fire-Spinning Dragon-Woman, model Andrea Romano Meythaler

So as an example, let’s say I created this image, “Fire-Spinning Dragon-Woman.” As the artist who created it, I own it. I have the copyright to it. However, I cannot get paid for it by a company that plans to use it to sell stuff if a model appears in the image unless I have a model release specifying I can do so. But, I could sell it as part of an article in the local newspaper describing sightings of a fire-spinning dragon-woman in the area.

If someone came to me and wanted to buy it, since I didn’t get a release I would have to approach the model and ask they sign a release. This release would specify exactly what we both get out of the deal, like splitting any proceeds from the sale.

Copyright protects the artist first but also allows for those that appear in the work to control the use of their likeness. Fortunately, copyright law has a long history of case-law and precedent, and the courts almost always find in favor of the artist in cases of infringement. Knowing your rights as an artist is key to protect your work, behind or in front of the camera!

Resources

Opening photo ©Kevin Ames

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