Photo Ownership and Copyright Law
Copyright Law – Ownership
Here is a question that is often asked... It is also the subject of debate between freelance models and photographers. The question is this:
I"f I have photographs taken of me, do they belong to me or to the photographer?"
Under U.S. Copyright law, the “author” owns the copyright in the work. Author means the person who actually created the work. The photographer who takes photos for a business for use on its website is the author and copyright owner of the work – even if the work was commissioned and/or paid for by the business.
Work Made for Hire Exception
There is one exception to the ownership rule – a work that is “made for hire” (also known as a “work for hire”). A work is deemed a “work for hire” in two situations: 1) an employment relationship; and 2) a commissioned work. Under either scenario, the third party (e.g.,business) is deemed the author and owner of the copyright outright, even though the work was created by someone else.
Here is How You Secure Ownership Of Photos and Photo Copyright
If you want to own the photos and the copyrights to the photos, you need to sign a "Work-for-Hire" contract with the photographer BEFORE YOU BEGIN THE PHOTOSHOOT. Also, you need to be the one directing the photoshoot (The lighting, the posing, the location and basically any part of the creative process for the photoshoot). If the photographer directs the shoot, then you need to make sure the contract is written to state that he or she is employed by you during this process and any creative input by the photographer belongs to you as his or her employer. Finally, you must pay for the service. Payment can be a fee (or currency) amount, but it can also be a service traded for a service. This is where TFP (also known as Time for Print or Trade for Print) comes into play. If the photographer needs your services as a model to complete a project or to build his portfolio and you agree to meet that need as a trade-of-service for his or her photography services, this qualifies as payment. Note: You must have this as a written and signed contractural agreement prior to the start of the photoshoot. However, if the photographer has no needs and you simply want a free photoshoot (calling it a TFP-shoot), there is no payment for his or her service. The rights for the photos would still belong to the photographer.
Lastly... If you have agreed to pay for a photoshoot... You take the photos and then demand to receive your photos prior to payment, they are still the property of the photographer.
Remember: IF IT'S NOT IN WRITING OR RECORDED (IN SOME WAY) TO DEMONSTRATE THE WORK-FOR-HIRE AGREEMENT, THE PHOTOGRAPHER RETAINS THE RIGHTS TO THE PHOTOS.
NOTE: Payments on PayPal, Square, Cash-App, Venmo or any type of payment system where you place the reason for the payment is for the photography services (will only demonstrate that you have commissioned the services of the photographer, but the rights of the work will still belong to the photographer without the signed Work-for-Hire agreement.