Photography, Contracts and Intellectual Property

Social media and the digital world is now a place that constantly holds everyone's attention. The ownership of images splashed across social media has presented itself to be a constant contentious issue. Photographers particularly, can face obstacles when formal contracts are not involved prior to their engagement with clients. These obstacles generally relate to the ownership of the photographs they take of their clients and the use of same.

Copyright

Copyright is an exclusive right that protects literary, and artistic works – which includes (but not limited to) music, photographs, sculptures, art and even computer programmes.

Photographers exclusively own the copyright in the photographs they capture, edit and alter (subject to agreements that state otherwise). In Trinidad and Tobago, “photographic works” are protected via the Copyright Act Chap. 82:80.

The now famous “monkey selfie” brings to light an example of copyright and ownership. In 2011 a British photographer travelled to Indonesia, set up his equipment in a national park. A few monkeys were curious about the equipment and started pressing the shutter button to take a few photos. One particular monkey took an exceptionally great self-portrait. This shot was featured in various publications and eventually led to a dispute between Wikipedia and the photographer David Slater. Wikipedia refused to take down the photo when Mr. Slater requested it. Then PETA decided to represent the monkey in a lawsuit against Mr. Slater, claiming the monkey (now named Naruto) held the copyright ownership. However, the Court declared the monkey – and animals – cannot sue for copyright infringement, as they simply do not hold that ownership.

This case firmly affirms that intellectual property is the creation of the human mind.

Copyright infringement

It’s quite easy for someone to now find an image on the internet and claim it as their own. Infringement of copyright occurs when the creator’s/owner’s (the photographer) image is used without express permission of the owner. Infringement can also occur when the terms of the licence aren't followed.

The importance of a contract

Photographers should be aware of the importance of always having a contract. It may seem daunting at first to speak to clients about contractual negotiations but on many occasions, business owners in general realise too late that a contract should have been made. Contracts outline the full business relationship between both parties and serve as a record of what each party commits to. These agreements mitigate risk and prevent misunderstandings. Most importantly these contracts are legally binding and enforceable.

A photographer’s contract can include, among others, a clause which stipulates payment. Payment terms can include when a deposit should be paid, as well as when the balance is due. Details of the type of photographic service will also be included, be it an event such as a wedding or a portrait shoot in-studio or at another location.

Particularly important in a contract is the issue of licences and assignments of copyright. As said above, photographers own the copyright in their photographic works. However the topic of ownership pops up when a photographer is hired or commissioned: on many occasions the general public believes that once they hire a photographer for a photoshoot, they believe they automatically own those photographs.

To alleviate such confusion, a licence or an assignment clause must be stated in the contract. The photographer can either retain copyright of the images and give the client a non-exclusive licence to use the photos in certain ways, for example for use on a website or posting them on social media, for a certain period. An assignment concerns the photographer transferring the copyright (and thus ownership) to the client. An assignment must be written and signed by the owner of the copyright as stated in the Copyright Act Chap. 82:80.

Social media and your content

Each social media platform has their own terms and conditions which users agree to in exchange for use of the platform. For example, Facebook’s Term of Service states that the platform needs certain permissions to provide services. The owner of the content gives permission to Facebook to use the content that is uploaded on their platform - but this permission does not extend to third parties. Instagram has similar terms of use, they do not claim ownership, but a user must give a licence to the platform for use.

Contracts and intellectual property are inherently important in a photographer’s business. It protects both the client and the photographer, outlines the objectives that are to be achieved, prevents misunderstandings, and gives peace of mind to the parties’ involved.

Disclaimer: This blog post and website contains general information for educational purposes only and should not be construed as or substituted for legal advice. If you require specific legal advice please contact a suitably qualified attorney.