Who Owns the Photo? Copyright and Licensing of Business Portraits

When working with a professional photographer for business portraits and other photography needs, many people think that once they've paid for the services, they can do whatever they want with the photos. However, that's not exactly true.

When the photographer creates an image (even if it is created at your request for a job), the photographer automatically owns a copyright to that image and has full rights to control how it's used. Just because you have the file on your computer or have a physical print of an image, that doesn't mean you have the right to do anything with it. Even without an official copyright notice on the image, the photographer still has the copyright since this formal "notice" isn't required to obtain copyright protection. But that doesn't mean that you are left out in the cold and aren't able to use the images.

Licensed Use Defined
Typically, a professional photographer grants a license to you for certain uses of the image (for a certain period of time). So the photographer keeps the copyright to the image and you get to use the image for specified uses, such as posting it on your company web site, using it in corporate bios, and other business purposes.

Every situation is different, so you need to discuss how you can use your photos with the photographer and iron out the details during your early discussions. It is important to bring up licensing as soon as possible because how you plan to use your photo often impacts the final costs of your project.

So how is the license granted? It can be specified in writing from the photographer (for instance, the photographer might include the license terms on the invoice or estimate/quote). Also, often on digital files, a copyright notice and a grant of license are embedded within the file. This is included in the "metadata" of the file and can be read with certain software.

The photographer doesn't always retain the bulk of the rights to the images, though. In some scenarios, the photographer can transfer either some or all of the rights, such as a broad transfer of rights, a transfer of the actual copyright, or a work-for-hire agreement. And when hiring a corporate photographer, knowing these terms and what they mean for your business can help you avoid potentially costly copyright infringements.

1. Broad Licenses
For a broad transfer of rights, the term "buyout" is often used. However, be careful with this term because different people have varying understandings of what the term means. So instead of using the word "buyout," the precise terms need to be negotiated and specified in the written materials.

The specific terms can vary, but often the photographer keeps the copyright while the client has exclusive and unlimited rights to use the image without any further payments to the photographer. The licensing fees for these very broad licenses are often quite high. It is usually better and more economical to think about how exactly you plan to use the images and discuss with the photographer to obtain a license to only the uses you actually need. This saves you money because you don't pay for the rights that you won't use.

2. Transfer of Copyright
The photographer can also transfer the actual copyright. For this, there must be a written transfer of the copyright and it must be signed. Then the person who received the copyright owns the full rights and can use the photos however they want. Of course, this type of arrangement often increases the licensing fees significantly because the photographer is granting all the rights to the image.

3. Work-for-Hire Agreements
A work-for-hire agreement is a specific way to transfer all rights from the photographer to the client. In this situation, the photographer and the client must sign a written work-for-hire agreement before the work starts. (Note that it must be written and signed before the work starts.) Under this type of agreement, the client actually owns the copyright from the creation and the photographer never gets any rights to the images.

Work-for-hire agreements are typically used in an employer/employee relationship where the photographer is an employee of the company. If the photographer is not an employee of the client, the situations where a work-for-hire agreement can be used are specifically limited by the 1976 Copyright Act (Title 17 of the US Code). In this situation, a work-for-hire agreement can only be used if the work is commissioned for use as a contribution to a collective work, as a part of a motion picture (or other audiovisual work), as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas. As you can see, the work-for-hire agreement would rarely be allowed for business portraits unless the photographer was the employee of the client.

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