“Does That Include the Copyright?”
It’s a question that I’ve encountered repeatedly from my very first foray into professional photography, and one in which I (along with every other photographer in the world) have often found myself getting tangled when trying to provide a concise answer: Does the price I’ve quoted for a job include ownership of the copyright to the images? And if not, why not?
So I thought it would be useful to provide a brief definitive guide for both photographers and clients to try and help clear up what copyright actually means, how it works in the real world and why, even if you can afford it, you probably don’t need it.
What Is Copyright?
Copyright is a slightly misleading term, which doesn’t quite mean what it says. For completely understandable reasons, many people think “copyright” is simply verbal shorthand for “the right to make copies”. While that is the origin of copyright law, and remains a significant part of it, in the digital age copyright goes beyond simply being allowed to duplicate an original work.
Chambers 21st Century Dictionary defines copyright as,
“The sole right, granted by law, to print, publish, translate, perform, film or record an original literary, dramatic, musical or artistic work for a certain number of years”.
(A longer, more detailed US legal definition is available here, but the essence is the same.)
Basically, in a photographic context, the copyright owner is not only able to copy an image in whatever form they like, but is by extension the only entity (the owner can be a company, not just an individual) who maintains control of the distribution and use of the image when it is passed on to a third party.
At the time of writing, the “certain number of years” stands at 50 in the UK. But as pop stars from the 1960s begin to outlive the copyright on their songs, legal challenges are being more frequently brought to extend this period to a century.
So What Does That Mean In Real Life?
So, legalese aside, what does all this actually mean? Let’s look at a simple, real-world example.
When you buy a movie on DVD or Blu-Ray disc, you would never expect that, for a meagre £15 or so, to become the copyright owner of the material on the disc, and therefore the person with the sole right to make copies or even play back (“perform”) the film. Would you expect everyone else who buys the disc to call you for permission to watch their copy? Or if a TV channel wants to show the movie, are they going to call you and pay you for the privilege of doing so?
Of course not, because you don’t own the copyright. You have paid for the right to watch the film in the privacy of your own home, whenever you like. You don’t own the film itself.
Similarly, if you buy a new car or a watch or a T-shirt, you don’t own the right to copy and build your own factory churning these things out. You own the individual item; not its design.
And so it follows with photography. When you buy a fine art print, you don’t own the image itself, or its copyright. You own the print, but not the right to make copies. The same applies to digital images, although their intangibility may make it seem otherwise: Digital images are just pictures that haven’t been printed yet.
“I Paid You to Take the Picture… So Don’t I Own the Copyright?”
Excellent question. And, if it’s been negotiated beforehand, you very well might.
There are a number of reasons a client may want to own the copyright to my work. One common example is that a corporation wants to ensure exclusivity of use and control any further use of an image or collection of images that they have paid me to create. Once the production material has been used for its intended purpose, the client wants to ensure that none of it is never used again, it cannot be recycled and can’t fall into the hands of their competitors at any time.
What will happen here is that a corporation will offer to hire me and present me with a contract which states that, for the duration of the job, anything I create belongs to them. It’s all up-front, it’s not unusual and it’s not a problem, as they will make sure that this exclusivity is reflected in my fee.
However, this must always be agreed before any images are created, as transferral of copyright of pre-existing work is a very different matter, which basically comes down to being a gamble for both sides: If I offer to sell the copyright to one of my images, I’m betting that the value of the work in the future is not going to be greater than the sale price. And if the client offers to buy it, they are tacitly betting that the opposite will be true.
The creator of an image is its automatic copyright owner and, in photography, this is legally acknowledged as being whoever triggers the shutter. So if you want to buy the copyright of one of my existing images you can only buy it from me, and I’m going to expect you to pay me substantially to cover any potential loss of earnings: Earnings which do not yet (and may never) exist, and so are extremely difficult to quantify.
What Factors Can Affect the Future Value of an Image?
Suppose an image being sold is one from a young, upcoming photographer. Will she go on to have an illustrious career and in years to come her early work worth millions? Or will she fade into insignificance the following year?
The same applies to any models, sitters, designers, brands and products involved in the creating the image, even if they aren’t in shot. (For example, the lighting system, the camera, the lens and the type of film used could all make an image sought after by collectors.) But there’s just no way of knowing.
Another major factor influencing the future earnings of an image is whether the image is marketed at all after its initial use, or whether it’s just left to gather digital dust on a hard drive. And for this reason, if you’re reading this having been offered the copyright of personal images – such as studio portraits or wedding photos – in return for hundreds or even thousands of pounds, I am compelled to provide this advice: Don’t buy it.
Aside from adding your personal images to their portfolio (which they will do anyway) the photographer or studio has no way of making money from images of you other than selling them to you. Have you ever bought a stranger’s portrait or wedding photo? No, and neither has anyone else. Selling you the copyright to your images is a nigh-on scam and a one-time-only opportunity for the photographer. This is the purest real-world example of the “gamble” mentioned above. The photographer is only willing to sell the copyright to you because he knows that it’s worthless to anyone else. So, regardless of what he asks for the copyright, offer him a penny. If he doesn’t accept, it’s still his loss.
What should happen is like the corporate example: Ownership of copyright should be discussed in advance of any shots being taken, and then included in the agreed fee. It should not be offered to you later as a costly added extra.
Taking all of the aforementioned unknowns into consideration, when a photographer is asked to put a price on the copyright of an image, they are likely to to go on the defensive and ask for an awful lot of money. The buyer, on the other hand, will argue that there’s no guarantee that the image could be worth anything at all in twelve months’ time, so will balk at the photographer’s asking price and, hoping to make an easier profit, will come in with something far too low. Both sides refuse to budge and negotiations grind to a halt.
But it’s very rare that negotiations ever get this far as it’s highly unlikely that you really need to own the copyright anyway. Even if the images aren’t personal and unsaleable to anyone but your friends and family, will you still want to reproduce that image in ten or twenty years from now? And if you do take the gamble and buy the copyright, can you be sure that it will work hard enough to pay for itself? Probably not.
Fortunately, to help the square peg of legality slip gracefully into the round hole of real life, we have licensing.
Licensing Explained (or Why Licensing is Wonderful)
Let’s go back to the DVD movie example from earlier. Imagine that you do own the copyright to the movie you bought. As the sole owner of the right to grant permission to play back the film, everyone else who had bought the movie would be legally required to call you up for your permission every time they wanted to watch their copy. What a gigantic pain in the rear that would be for everyone involved, including you.
This is where licensing comes in and rescues legality from reality. When you buy a DVD you don’t own the copyright to the movie, but you are licensed to watch it at your leisure under certain conditions. You know all that scrolling text that they force you to watch (but nobody ever reads) at the beginning of a disc? Something about Oil Rigs, Schools, Prisons and Hospitals? That’s your licence. This means that you, along with everyone else who owns a legally distributed copy of the film, are licensed by the copyright holder to watch this copy as many times and whenever you like without having to ring them up to ask for their permission each time. And nobody has to ring you to ask your permission, because while you do own the disc, you don’t own the copyright.
And… Hooray! Normality is restored and the world is a wonderful place again, thanks to a simple piece of written permission that comes with your purchase. Not only does it comfortably bypass all those legal obstacles that copyright ownership throws up, it also makes everything conveniently affordable, and with no lengthy negotiations.
It’s just the same with photography. For example, if you commission me for a headshots or PR shoot, your invoice implicitly carries this licence. It basically states that I, the copyright holder, conditionally transfer to the client complete and exclusive control of the images they have commissioned for a period of two years from the date of the invoice, all without requiring any transferral of copyright.
Two years is not an entirely arbitrary length of time: Although I could have reasonably chosen one year or three, it’s typical for actors to get their headshots redone every two years. PR images have an even shorter shelf-life, sometimes of just days or weeks, so a two year licence covers those jobs more than adequately.
If anyone wants to renew the licence at the end of the two year term, or wants a licence extension from the date of the invoice, that’s no problem at all. All they have to do is get in touch and ask. And I can guarantee that it won’t cost them the earth; Sometimes it costs nothing at all.
Copyright vs Licensing: In Summary
- Copyright isn’t just the right to make copies, but the sole right to make copies.
- If you’re given a quote for a job that doesn’t include copyright, ask what the licensing terms are.
- You can buy the copyright, but it won’t come cheap and is probably unnecessary anyway.
- Licensing offers a far more affordable and flexible options in the overwhelming majority of cases.
- If you really want to own the copyright, always mention this before the job commences, not after.