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?
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.
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
- PPA — Copyright Resources for Professional Photographers
- Copyright Alliance
- Friends of Active Copyright Education
- U.S. Copyright Office
- ASMP — Sample Model Releases
- Image Licensing — PLUS License Generator
Opening photo ©Kevin Ames
Hi Jason,
I have a question regarding the topic: I ( the photographer) made a photo shoot with a model with no payment and no model relese involved, for portfolio usage only and then she decides to use those pictures in a commercial way ( seliing them on different platforms ). Is she allowed to do that? Can i request for those pictures to be taken down from all the platforms?
Hi Jean, I’m Kevin Ames and I’ll answer the question on Jason’s behalf. If there is no written agreement concerning portfolio use only for the photos, you still own the copyright. Before escalating the issue with the model, contact her first and remind her that according to copyright you own the photos. You might be hard-pressed to sell them without a model release from her, but the model has no right to sell your photographs. You absolutely can and should ask the photos be taken down from the platforms. Now, here’s the key question: Did you register the photos with… Read more »
Thank you for the answer!
Just curious, why take them down or sue? Why not ask for a cut of the profits? If you have them taken down, the model doesn’t make any money but neither does the photographer, so is it just to take food off her table because you can? Am I missing something where the photographer is selling them on another website, if so then have her link to them and give her a cut. I guess I understand wanting to sue and get a windfall, but it means you aren’t contributing anything to society that people want. You aren’t advancing art… Read more »
I completely agree. The photographer wouldn’t even have a photograph to sell if it weren’t for the model. Both artist worked on the project. This also goes for anyone else in the creative team that helped put together the photoshoot. Everyone plays a key role in the final product. In some cases, all the photographer has to do is press a button. Photographers tend to get more credit than anyone else. Why can’t the entire team work together to push out their work?
the reason that the photographer gets the most credit is because it is the CONCEPT that is his. No visionary, no photos.
My daughter is getting married in a couple of months. Our Photographer gave us a contract that has a Model Release in it. As I read this, the Photographer has the right to alter the photos in any way they choose and then sell them to any third party to be used in any way they choose. That seems pretty one sided to me. They can take a photo, photoshop a naked woman’s body onto it and post it on the internet. It seems to me that there should be some protection for the person in the photo. Any help… Read more »
Hi Rick, What you describe is how most model releases are worded. My model release has much the same language. Your interpretation of what it says is accurate as far as alteration goes. Model releases are contracts and are negotiable. I had one woman who was on-air talent at a local television station add that her likeness was not to be added to anyone else’s body. Her point was that it would be detrimental to her career if I did that, which, just to be clear, I have never done. My advice is to add a sentence or two that… Read more »
Ok thanks
thats a bad joke, I am an award winning photojournalist, was named one of the best wedding photographers in the US in 2006 by Grace Ormonde Wedding Style, I would find another photographer
Hi Jason, I did some boudoir photos about 15 years ago by a photographer who also shot photos for adult websites, and I signed a release but I hand wrote onto the release that nude photos were not to be published on the internet, especially anything related to adult content as I didn’t want to be associated with any of that. I was also extremely adamant about that with him and he was clear and understood. I have since found out that some of them have been published online about 8 years ago (7 years after taking the photos) and… Read more »
I had a similar case a couple of years back that was settled on confidential terms. (I’m an attorney.)
Are you for hire??
Hi,
My husband’s a wedding photographer and he did a pre-wedding shoot recently. He hasn’t charged the couple as the groom was his friend neither was any model release signed in this case. However, the wedding didn’t go as planned and was called off. Now the bride is threatening us to remove her pictures from our social media pages which my husband uses for promoting his work else she’ll file a legal case. Are we legally bound to take down the pictures? Please help
you are the copyright owner once you press the shutter button and can use your own work
to promote yourself BUT take it from a published, award winning wedding photojournalist who has shot in 17 countries over a dozen years, you do NOT want to showcase people on your site that have ill will for you, bad idea, take them off immediately, be bigger, move on.
Hi I’m a photographer I wanted to know if its ok to shoot people at the beach with out consent first (but would ask after) not for money but for social media?
Hi Eitan, you can definitely do this as long as there’s no money involved. This is how many street photographers work :) Obviously just be respectful of people’s privacy if they ask you to stop, or if they question it.
NOTE: If you are outside the U.S., rules might be different.
Hi Jason. I am a beginner model and recently attended a TFP shoot with photographers whom I thought to be my friends. After a while they started pressuring me to take part in the implied nudity and boudoir part of the day. (Note there were more models doing these categories, except for me). Feeling pressured to say yes we did a few photos in lingerie. That evening the reality started to sink in that I have done something I was not comfortable at all and felt completely violated as a human being. Is there a way to create a denial… Read more »
I have a question.
In one ocassion I worked with this photographer. All the ideas for the artistic shoot invluding special head pieces. and other props I created were made by me. The model release for the photoshot were only under my name. Regardless, both of us took photos, do I have the rights of his photos as well? I paid thr model.
I find this all to be absolutely detestable. If I pay for a photo to be taken, I should own the images. For the raw unedited copies at the very least. I would of course be willing to grant rights for the photographer to use the images for promotional purposes though. This is my experience paying for a photo shoot: You do one of a few standard poses in a studio set up in of a few standard ways (e.g. backdrop colour and lighting) while some smuck does little more than press a button on a camera with predefined settings… Read more »
Hi Jonathan, Copyright law protects creators, all creators equally no matter what their skill level may be. You and only you own the rights to each photo and selfie you take on your cellphone. Artists, whether with brush on canvas or using a guitar own the work the instant it is made unless a previous agreement was made. These agreements are known as work-for-hire. The question is not really about ownership of the photograph. It is about you receiving the right to display the photograph on media that meets your needs. Consider buying a record album. You have the absolute… Read more »
You have to file and pay to have your work copyrighted. You can’t just deem it copyrighted. Have you ever used this copyright theory of yours in court? Eg. I’m a brand designer we have to file a copyright application for our brands or our logos will not be copyrighted.
Can a photographer use a photo he snapped for his personal promotional purposes, I mean to promote his brand, by maybe slapping his logo on the photo, without permission from the model?
hello Jason, I shot a model for 30 minutes, I got the release signed from her, the card that I used was corrupted and couldnt get any images to share with her, she said that is going to sue me for not sharing her pictures, what could happen ? first time in this situation. thank u
This article was super helpful! I had a question though, just to clear up some things I was wondering. I’m an amateur photographer building up a portfolio, so I have a mixture of images of nature, or portraits of people. I haven’t done any paperwork or anything that formally copyrights anything, but want to post my photography on Instagram and so on. But I’m afraid someone will take my pictures and use them as their own. In the article it says that basically as soon as the shutter clicks I own the image, does that still work without a formal… Read more »
Yes, you still own that image, even without a formal paid copyright.
Hey Jason! I’m doing art and I had this nude photoshoot with two girls dancers, one of them didn’t sign the model release. There are no faces, it’s a very minimal shoot. As long as I understood I can still use and publish my photos as art or gallery exhibition but I can’t sell them as art prints for example? There are just parts of bodies, nothing personal.
A photographer took a photo of my horse and is now using it to promote/advertise her new business as an equine photographer. Is that allowed or can I do something about her using him without my consent/payment?
Hi Lynn, If the photos of your horse were taken in a public place, there really isn’t anything that you can do about her using the photo to promote her business. In situations like this, asking the person using photos she made of your horse politely to not use it is likely your best recourse. On the other hand, if the horse was photographed on land you own, there might be a case. Check with your attorney. Often, a gentle conversation can get both of you to a resolution. I notice from your email address that you deal in tack… Read more »
Hiya, I took a picture of a celebrity about 2 years ago and know the National portrait Gallery wants to display the image. Can I Donate the image for display with out the models consent?
Hi Jason, Me and my friend are non stop creative minds, we went on a trip and took a lot of photos, most of the time I pose as a model with my own ideas/poses/clothes. Some other times I requested a shot in a specific form and manner. One of those photos who I specifically asked for (with the specific site, direction, angle) was mentend to be my portfolio image. He liked it so much thathe posted on instagram taggin me because I appear in the phot, but nothing else. I think that he wants to believe that the photo… Read more »
Hey John,
Technically whoever clicks the shutter button “owns” the photo. Still, there should be some sort of arrangement set in advance to make sure that you are either paid for your work, or that you get copies of photos.
Hi John, I’m afraid you need to put your experience in the box labeled, “lesson learned”, and move on. You were naive about copyright laws and someone took advantage of you. There was an asymmetry in your situation: Your friend (the photographer) knew the law, and you didn’t. In the future, you will know the law, and you can protect your intellectual contribution to any future photo shoots. In my situation, I have arranged photoshoots at my place of business and I hire models for these shoots (who, by the way are much more expensive that photographers). As far as… Read more »
Thank you for this great article, Jason! I am a novice photographer, and I have a question about Model releases for Stock. I am planning to take some shots of a couple people for Stock. My models are willing to sign off Model Releases in exchange for pictures to use for their own promotion (Portfolios, Social Media, etc.). Now, in Model Releases it usually states that Models waive their rights to those images, so do I have a right to supply Models with pictures I am planning to submit for Stock? Would anyone further in the road get upset if… Read more »
Is it legal to use a photo I took for personal use to share with others? If a photography business takes my photo I believe they took it so now own the copyrights?
Yes, it’s legal to use a photo you took for personal use to share with others.
And correct, if another photographer takes your photo, they own the photo copyright. You can ask for usage rights.
Hi! Great article. Quick question as I am a new photographer. Did a fashion shoot with a model. She signed a model release form, giving me all copyright to photos and use. She asked me to send her some of the photos so she can post them on her instagram feed, accrediting me as the photographer. Is this something I can give her permission to do? Does this violate the model release form she signed? Also, the photos will be published in a magazine. Thanks!
Hi Mel, As soon as you, the photographer, take a picture, you own the copyright. The model release does not have anything to do with your copyright. It is the model’s agreement that you have the right to display, modify and monetize your work without her/his additional approval. The rights need to be listed in the release form itself that the model signs. You own your copyright on the pictures you take. You can absolutely grant the model a license to display your work on Instagram or anywhere else you specify and require that you receive a photo credit. For… Read more »
Hi I did a boudoir maternity session with a photographer that was free I never signed any kind of release for images and asked her not to use the lingerie ones publicly only maternity. She proceeds to use both for her pages as well as marketing with them on public platforms what can I do?
The articles suggests how to do a takedown notice.
The article suggests how to do a takedown notice.
Hi, I have a question regarding the copyright claim.
This is the scenario
Model A signed a model release with an agency.
Model A hired a photographer with model release, and photographer understands its for the agency.
Model A then takes the photos and gives it to the agency, photographer is trying to sell the photos.
Does the agency or the photographer or both have the rights so the photos?
I have a question involving this. I had it in written form that I ( model) pay the photographer for a bday shoot that I decorated and brought myself. We got into an argument because he kept touching me while I was talking about my feelings. Long story short I was kicked out and my phone’s were basically stolen/misplaced. I no longer have it in writing but I do have the payment and I’m pretty sure he has texts unless he deleted it. And he basically took my bday shoot pictures and gave them out to other models and didn’t… Read more »
Hi, I have a relative that works as a model for photography and she has copies of her portfolio online to attract other photographers. There’s one picture that I really want to render as a painting. I don’t live near her so I can’t just go and paint her. Does it infringe on the photographer’s copyright if I recreate it in a different medium and then sell it?
Hi Jason,
I work for a magazine. We are required to get photo waivers from the professional photographer for photos that our featured family submits to us. If they can’y recall who took the photos, and they say they paid for those photos and we can write “photos courtesy of the … family,” can we publish those photos? Or can we be legally subjected to copyright infringement?
Hi I am a currently been paid and hoc to shoot lifestyle images for an online brand – I have. I signed contract and I get paid a flat fee for 20 images – they do not credit me on their social media goes or website or Instagram- can I legally insist on it
Unless that was written in your contract, no, you cannot force them to provide credit. I’d recommend politely asking if you haven’t already; ideally you want them to hire you back again.
But most online brands don’t provide credit for something you were paid to shoot, again, unless it was outlined in your contract that they would.
Hi Jason,
I have a question…if a company that I work for pays for a photographer to take photos of me and some with the staff collectively and the photographer sends me the photos taken of me am I liable in court if I post them on my social media account with the photographers permission?
Hi, I modeled for a photographer (no pay), and she sold a portrait image at a gallery show (the photographer) as well as sells reproductions of the portrait without giving me any type of compensation. Is this ethical and legal?
Is it possible to add to a Contract for a photo requesting that it be made to look distinguished? If yes, why not put in the contract who owns fee title to the rights?
I had a photo shoot done and was forced to sign a contract in order to receive my photos. The photographer refuses to give me a copy of it or a receipt for services rendered. Now he is threatening me with him calling his lawyer and the police for reasons unknown. He did not pit his name/ logo on any pictures as they were shot for me and not his magazine. I will be selling calendars to help my career. Do I have to pit on there he took photos? It wasn’t until all of us models were done shooting… Read more »