The In’s and Out’s of Your Photographer’s Copyright Clause
Congratulations, you’ve found your ideal photographer to shoot your event, headshots, or even your special day (yay!!). But before you book them for your date, there are a few things you should be aware of to ensure you have a full understanding of your Photographer’s Copyright Clause including the ownership of the photos, rightful use, and selling the photos.
We are going to go over:
- Who owns the photos?
- How you can use the photos
- What if you want to use the photos for commercial purposes and
- Stock website usage!
Let’s dive in!
Who Owns the Photos?
You may be under the impression that because the Photographer is taking photos of your event, and you are in those photos, that you’ll be able to do whatever you want with them and share them however you’d like. Quick answer to this… yes, but also no.
“Under Canadian copyright law, the person who creates the work is the principal owner of the work and can control how it is used.”
Under Canadian copyright law, the person who creates the work is the principal owner of the work and can control how it is used. This means that the Photographer is actually the original owner of the photos. Industry standards allow for all photographers to retain ownership of their own work so they can use the photos as advertising and marketing tools for their own business or to include them in their portfolios for future opportunities. This happens by default at the exact moment each photo is taken. This does not mean that you won’t get access to the photos (you are paying for them after all) but this legality comes with some restrictions on the use of the photos in the future.
How You Can Use the Photos?
When hiring a photographer there are two ways you can use the photos: the first is for ‘personal use or ‘private use’, the second is for ‘commercial use’.
‘Personal use’ or ‘Private use’ is just that – for personal and private use. This means you can use the photos for sharing however you like. You can share any of the photos on social media, reproduce them in photo albums, or stick one on your Grandma’s fridge for safe keeping, but ‘private use’ also signifies that you cannot sell these photos to a stock photo website or use them as a promotional and marketing tool in business endeavours. If the purpose of your photo shoot was to advance your brand image, create marketing materials, or produce content for revenue generating activities this would all be considered for a ‘commercial purpose’.
What if you want use the photos for commercial purposes?
If your intention of hiring a Photographer is to use the photos for a commercial purpose to promote your business, advertise online, in a magazine, or sell them to a stock company website, this will need to be written into the Service Agreement between you as the Client and your Photographer prior to the shoot.
Under the Canadian Copyright Act, the commercial use of photos is prohibited without the author’s authorization. These rights can be sold and transferred to you with written approval from the Photographer, but keep in mind that the choice is entirely that of the creator as to whether they want to sell the copyright and waive any moral rights to their work.
Stock Website Usage
If your intention is to sell the photos to a stock website, make sure the contract allows you to! You must include:
- Express authorization from the Photographer transferring copyrights
- Explicit waiver of the Photographer’s moral rights to extend permitted use of the copyrighted work
When selling your photos to a stock site, photos are sold as a license to use. The most common type of licensing of stock photos is a Royalty-free license which means that the purchaser cannot go on to resell the photo and it’s more of a “one-time-use” transaction. A rights-managed license tends to be a more expensive purchase. It allows the owner to stipulate how the photos are to be used by the licensee, though the owner will no longer be able to use the same photo anywhere else. As always, we recommend clearly looking through the license rights as set out by the stock photo sharing website of your choice.
Author Credits
Paige Bonner is a final year law student in the UK and a 2021 EFV Legal intern. She is specializing her studies towards intellectual property and trademark protection, and can always be found attending global trademark conferences. Connect with her on LinkedIn.
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