Let’s connect on Instagram: https://www.instagram.com/fromtherooftops.art
The relationship between the model and the photographer can be a beautiful creative partnership, producing amazing images that both people may cherish forever. However, there is a lot of confusion regarding photography copyright law, especially among amateur models and photographers. These misconceptions can lead to relationship-ending disputes and legal issues that could be avoided with law knowledge. In this post, I will review some key points of photography copyright law that models and photographers need to know to protect both parties and make the working relationship more professional. Please note, while I’ve studied this law, but I am not an attorney.
Like other intellectual property laws, photography copyright laws evolved to protect creators’ rights and encourage innovation and creativity. Here’s how these laws came to be and why they are important:
Historical Development of Copyright Law
- Origins in the Statute of Anne (1710):
- The first formal copyright law, the Statute of Anne, was enacted in England in 1710. It was designed to protect authors from unauthorized reproduction of their work and allow them to control the publication and distribution of their creations. This law recognized the importance of protecting creative works and laid the groundwork for modern copyright laws.
- Expansion to Visual Arts and Photography:
- As photography became more popular in the 19th century, there was a growing need to extend copyright protections to this new medium. The Burrow-Giles Lithographic Co. v. Sarony case in 1884 was pivotal in the United States, where the Supreme Court ruled that photographs could be protected under copyright law as original works of authorship. This decision was significant because it recognized the creative effort involved in photography, not just the mechanical process of taking a photo (source: NYU Law Review).
- The Berne Convention (1886):
- The Berne Convention for the Protection of Literary and Artistic Works was established in 1886 as an international agreement to protect creators’ rights across borders. It ensured that works, including photographs, would be automatically protected in all member countries without formal registration. This convention was crucial in standardizing copyright protections globally, making it easier for photographers to protect their work internationally (source: picdefense.io).
The Picture Has Been Taken, But Who Owns the Copyright?
When a photographer takes a picture, the photographer owns the copyright to that image. That copyright gives the photographer the right to reproduce, distribute and display the image. Many models, especially new to the industry, think because they are in the picture they own the image. But copyright law is clear: the photographer as the creator of the work owns the copyright unless it’s transferred through a contract.
Common Myth: “I’m in the Photo, So I Own It”
Imagine a model shooting with a photographer who later assumes they can use the images freely because they are in the picture. They post the images on social media or use them in a portfolio without asking the photographer. This myth can cause problems if the photographer wants to retain control over how and where the images are used. Without a written agreement granting specific usage rights, even on social media, the photographer can object to using their work without permission.
Model Releases and Contracts
A model release is a legal document in which the model agrees to the use of their image in the photographs. It grants the photographer the right to use the images for specific purposes, like portfolios, commercial use or publication. Without a signed model release, a model can argue that their image is being used in ways they didn’t agree to, which can lead to legal issues.
If there is no model release, the photographer’s ability to use or sell the photos, especially for commercial purposes, is significantly limited. Here’s what happens in such a scenario:
1. Editorial Use vs. Commercial Use:
- Editorial Use: Without a model release, the photographer might still be able to use the photos for editorial purposes, such as in news articles, blogs, or other non-commercial contexts where the image illustrates a story. However, this can vary depending on local laws and the specific context in which the image is used.
- Commercial Use: For commercial purposes—such as advertising, product packaging, or any use that promotes a product or service—the photographer generally cannot legally use the images without a model release. Using the photos in this way without permission could lead to legal claims against the photographer for violating the model’s “right of publicity.”
2. Right of Publicity:
The “right of publicity” allows individuals to control how their likeness is used commercially. If a photographer uses a model’s image without their consent in a way that exploits their likeness for commercial gain, the model could sue for damages. This right is especially strong in jurisdictions like the United States, where individuals often have legal protections against the unauthorized commercial use of their image.
Common Myth: “I Can Use the Photos for My Portfolio or Social Media Without Permission”
Many models think they can automatically use the images from a shoot for their portfolio or social media. While that might be allowed under the terms of a specific contract, it’s not a given right. Both parties need to have a clear understanding of how the images can be used. For example the photographer might be okay with the model using the images for personal promotion but not commercial use or without proper credit.
Model Release Contract Tips
To avoid confusion have a contract that clearly outlines the rights and responsibilities of both parties. The contract should cover all potential uses and allowances, including:
- The uses of the images (e.g. portfolio, social media, commercial use).
- The right to edit or alter the images.
- Attribution requirements. This refers to the obligation to credit or acknowledge the creator of a work, such as a photograph, when it is used by someone else. In the context of photography, this means that when a model or any other party uses a photographer’s images (for example, on social media, in portfolios, or in publications), they must credit the photographer as the image’s creator.
- The duration of the rights (e.g., perpetual or time-limited).
- What happens if either party breaches the contract?
This, in writing, protects both the model and the photographer and ensures everyone is on the same page.
Moral Rights and Image Manipulation
In addition to owning the copyright, photographers also retain “moral rights” to their work. Moral rights protect the photographer’s right to control how their work is used and presented. This includes the right to attribution (ensuring the photographer’s name is associated with the work) and the right to the integrity of the work (preventing others from altering the work in a way that distorts the original intent).
Common Misconception: “I Can Edit or Retouch the Photographer’s Photos However I Want”
Models may want to edit or retouch photos before posting them online, perhaps to adjust the lighting, apply filters, or remove blemishes. However, altering a photographer’s work without permission can infringe on their moral rights. Even if the photographer has granted usage rights, they may still have the right to object to certain alterations. For instance, a photographer might feel that heavy editing changes the message or aesthetic of their work and, therefore, negatively affects the integrity of the image.
Best Practices for Image Editing
If you are a model wanting to edit or retouch images, it is crucial to discuss this with the photographer before making any changes. A mutual agreement on what alterations are acceptable can prevent disputes. Some photographers may allow minor edits but draw the line at significant changes that could alter the image’s meaning or quality.
Navigating Social Media and Copyright
Social media platforms have made it easier than ever to share photographs, but they have also introduced new challenges for copyright holders. Once an image is posted online, it can travel widely without the photographer’s consent. This can lead to unauthorized use and distribution, making it difficult for photographers to maintain control over their work.
Common Misconception: “Posting on Social Media Is Fair Use”
There is a common belief that posting images on social media constitutes “fair use,” especially if the images are not being used for commercial purposes. However, fair use is a complex legal defense, not a blanket exemption. Posting images without proper permission can still violate copyright, even if it’s done for non-commercial purposes like personal promotion. Models and photographers should ensure they have clear agreements about social media usage and consider using watermarks or other methods to protect their images online.
Protecting Your Work Online
For photographers, here are a few tips for protecting your images on social media:
- Use Watermarks: Adding a watermark to your images can deter unauthorized use.
- Monitor Image Use: Set up Google Alerts or reverse image search tools to track where your images are being used online.
- Limit Image Resolution: Posting lower-resolution images can discourage others from using them in high-quality prints or commercial work.
- Know the Platform’s Terms: When you upload images, be aware of the rights you may be granting to the platform, as social media terms of service often allow broad usage rights. For example, did you know Instagram can use your images any way they wish through their terms of service?
International Considerations
Copyright laws can vary significantly from country to country. While most countries adhere to the Berne Convention, which grants automatic copyright upon creation, enforcing these rights can differ, especially in developing nations where copyright laws may be less stringent. This can complicate matters when images are shared across borders.
Common Misconception: “I Can Use the Images Freely Across Different Countries”
Some models and photographers assume that once an image is posted online, it can be freely used anywhere in the world. However, international copyright laws may impose different restrictions depending on the country. For example, what might be considered fair use in one country could be a clear infringement in another. It’s important to understand the local laws in the countries where your images are likely to be viewed or used.
Tips for Cross-Border Collaboration
When working with models or photographers from different countries, consider the following:
- Include International Clauses in Contracts: Specify which country’s laws will govern the contract and how disputes will be resolved.
- Be Aware of Local Practices: Understand how copyright laws are enforced in different regions, especially if you plan to sell or distribute images internationally.
- Consider Geo-Blocking: If you are concerned about unauthorized use in certain countries, consider using geo-blocking tools to limit access to your images.
Final Thoughts
Understanding photography copyright law is crucial for both models and photographers to protect their rights and avoid unnecessary disputes. Clear communication and well-drafted agreements can go a long way in ensuring that both parties are on the same page regarding image use, distribution, and alteration. By educating yourself and establishing clear terms before a shoot, you can focus on the creative process and enjoy a more collaborative and professional working relationship. Sure, contracts can be scary, but plenty of apps and online templates can help you create a valid model release. Just try a Google search.