Like so many things,the realm of photographic copyrights has been significantly affected by the internet.
“You could argue in the old days that whoever owned the negatives owned the rights,” says Jimi Smith, a Virgin Island-based photographer who shoots pools, spas and waterfeatures around the country. “But things have changed digitally.”
It has become so easy to appropriate others’ images that photographers have to be more diligent than ever about protecting their copyrights and making sure to collect the pay they’ve earned. Because of this, they may place restrictions on your use of images in ways you don’t realize.
With a basic understanding of how these professionals structure their licenses or usage agreements, you can avoid trouble down the road.
A matter of ownership
It may not seem intuitive, but photographers generally retain the copyright to the images they take.
“The general idea and the law is that the very minute that a photograph is taken, the copyright exists and belongs to the photographer,” says Thomas Maddrey, general counsel and head of national content and education for the American Society of Media Photographers, based in San Francisco.
This especially applies to commercial photographers — those who shoot for companies, as opposed to those working for individuals and the general public.
Incidentally, the same is true for pool designs. When a designer finishes their drawings, they own that copyright.
Intuitively, one might expect that if they purchase a photo or a drawing, they own it and should be able to use it however they want. But intellectual property is a little different: Protections such as copyright are meant to incentivize people to create. Otherwise, if their art or inventions could so easily be used by others who didn’t put in the work, they’d have little to no reason to continue.
In selling images to a customer, the photographer is granting the rights to use the pictures. Because they hold ownership of the copyright, photographers can restrict how the photos are used. Some will sell the copyright to the images, but it generally drives the price up significantly.
Be sure to discuss this with the professional. “All you need to do is make sure the photographer knows at the beginning [if you want to purchase the copyright],” Maddrey says. “Then both sides can negotiate and come to a price accordingly.”
The fine print
In assessing your usage rights, consider a number of ways that these images are used. Address this upfront with the photographer, as it will affect your rate for the photos.
Many photographers charge a rate for their time and travel to shoot the site. Then they add a fee for usage rights, based on how extensive they are.
Most photographers automatically grant rights to post the images for purposes that promote your company — in advertisements, on your website and for social media accounts.
In some cases, restrictions can begin to kick in when you go to submit the photos to media outlets since, strictly speaking, this it doesn’t involve marketing and advertising. This introduces something of a gray area. Many photographers are fine with such usage, as long as the photos are credited to them. (So always submit the credit information to the media outlet when supplying photos.)
But others require that the customer or media outlet pay extra to include their work in an article or other coverage. Photographers who impose this requirement sometimes will make an exception if the article profiles your company, since such coverage does serve as promotion.
The same holds true for competitions such as design contests. Organizers will generally require contest entrants to sign a waiver granting them the rights to use the images, introducing a third party into the bargain. And the photographer may not think this falls within the scope of their licensing agreement.
For many photographers, issues become black and white if you want to share your images with other companies.
“What I have done is granted unlimited usage to my clients when I take pictures of a pool,” says Mark Boisclair, a Phoenix-based photographer who often shoots pools in his area. “But it’s for him to use for his needs. That’s non-transferrable.”
If a third party wants to use the photos be sure to consult the licensing agreement or the photographer directly. The company may need to negotiate with the photographer for licensing of its own.
This becomes especially sensitive if the other company serves a larger market than yours. If a manufacturer, for instance, wants to use photos of your project in their advertisements, they may have to pay a higher licensing fee than a builder, retailer or service company, because the manufacturer’s ad will have a farther reach.
Explain your needs to the photographer. These professionals generally want to help their clients succeed, so they seek a balance between being helpful and earning the pay they deserve.
