I paid a photographer to shoot my work. Who owns the photos?
February 17, 2009 9:32 AM   Subscribe

Legal boffins! I paid a photographer a few hundred pounds to shoot some of my sculptures. No contracts were exchanged, and no agreements were made about where the photos would be used. Now a magzine would like to use these photos in a forthcoming issue! Awesome. But the photographer says I don't have a license to allow a third-party to publish these. Is he right? Do I own the photos or does he? I don't have the pieces any more so can't get another set of photos made... Am I screwed? Thanks guys :) PS: I'm in the UK if that makes a difference...
posted by basil1 to Law & Government (22 answers total)
 
I know this is outside the scope of the question, but is there a reason the photographer doesn't want the photos in the magazine? You both get credit. It's win-win-win, right?
posted by originalname37 at 9:44 AM on February 17, 2009


Best answer: If you didn't have a contract, then I would assume the copyright for the photos still belong to the photographer, and that by giving him money you paid for a copy of the photos themselves and not the full rights to the photos. Without any type of contract, the copyrights for something belong to the person who created it, not the person who commissioned it. A contract is what transfers the rights for the photo. Since you have no contract, no rights have been transferred. You should see if the photographer is willing to sell the rights to the photos and thus make them truly yours. If not, yes, you're screwed.

This is why we always have contracts for anything, even if it seems small. Such a contract should always make it clear who is paying whom and for what services and end products the payment is for. It eliminates or at least reduces such misunderstandings.
posted by Meagan at 9:49 AM on February 17, 2009


I know this is outside the scope of the question, but is there a reason the photographer doesn't want the photos in the magazine? You both get credit. It's win-win-win, right?

The photographer wants to be paid by the magazine for their use/distribution. I don't know enough about UK law to comment further.
posted by availablelight at 9:49 AM on February 17, 2009


Best answer: Here is a great article that informally discusses UK copyright laws when it comes to photography. In the absense of a contract explicitly signing over full rights to you, a freelance photographer maintains copyright of the photos as their author.
posted by muddgirl at 9:52 AM on February 17, 2009


Best answer: Looks like you're out of luck. The copyright for the photos, barring any other agreement, lies with the photographer.
posted by vacapinta at 9:54 AM on February 17, 2009


Best answer: I am a photographer (but in the US). When you license your work (with a contract and everything), it's rare to hand over full rights (i.e. copyright). Even when I've worked on assignment my license usually specifies "in such-and-such issue of X magazine" or "in print materials only for a period not exceeding six months"—I've certainly never handed over rights to allow my work to be published by a third party! Especially without any inked contracts, I think you have basically no rights with regard to the photos except any prints he's provided (unless you had an implicit verbal contract you'd like to take him to court about).

I don't think you're totally screwed—s/he probably just wants the magazine to pony up a few hundred quid (possibly more if it's a major publication or the photos will be printed big). Unless it's a super mom-and-pop outfit (your town paper?), the magazine probably pays for almost all the images it uses. Talk to them about it. If the photographer is holding out for too much money or the magazine folks aren't willing to step up, hire someone else with an explicit agreement this time. (Find a talented amateur on Flickr, tempt them with the exciting exposure they'll get, and pay them a nice hourly rate. It's a win-win!)
posted by rafter at 10:00 AM on February 17, 2009 [2 favorites]


You're screwed because you trusted this photographer on a handshake agreement. I'm fairly certain that for the money you were paying, you wanted work for hire type ownership of the photographs. The photographer most likely realized this and did not offer it in case a situation like this one came up. The least you can do is give him a bad Yelp review to warn others not to make the same mistake.
posted by mullingitover at 10:34 AM on February 17, 2009


I wouldn't leave a bad review in Yelp, since the photographer didn't do anything wrong. I would appeal to him on a personal, non-legal level if possible. Let him know that you don't have any other usable photos of the sculpture and ask him if there's a way to come to some sort of workable agreement. If your work is getting published, maybe there is a chance it will get published again? Agree to consider him first for the next opportunity that comes along and promise him that next time you'll work out an arrangement that includes future publication. Also, maybe let the people at the magazine know about the situation? These sorts of things probably happen all the time and they will have someone on staff familiar with wrangling with photographers.

Whatever you do, do not play the "exposure" card with this photographer. People in the professional service industry are seriously sick of people using that line on them.
posted by Deathalicious at 10:47 AM on February 17, 2009


If you didn't sign a model release, the photographer can't sell them either.
posted by rhizome at 10:47 AM on February 17, 2009


You don't need a model release for photos of sculptures.
posted by mendel at 10:52 AM on February 17, 2009


I wouldn't leave a bad review in Yelp, since the photographer didn't do anything wrong.

He didn't do anything wrong per se, but a better photographer would have been more explicit about what rights are being purchased. If this guy is really a professional in occupation, it will not be the first time he has dealt with this confusion. But if he were a professional in demeanor he would have tried to prevent it. This does not mean giving up the rights for free, but it does mean adding some clarity for confused clients who are new to the game.

What tack you take with the photographer depends on how much you trust him. If you let him know that his photos are your only remaining record of the sculpture, he might see that as an opportunity to gouge you. Hopefully he would be more merciful, but you have to decide that. Or you can just let the magazine sort out the rights.
posted by grouse at 11:07 AM on February 17, 2009 [2 favorites]


So why not forward the photographer's information to the magazine and let them hash out an acceptable agreement? Magazines pay for photos all of the time. I don't see how you are screwed.
posted by JJ86 at 12:19 PM on February 17, 2009


What's interesting to me is the different reactions photographers and non-photographers have to this.

As a non-photographer I'd have assumed that if I paid the photographer to take pictures for me then they're *MINE*, not his, and that I can do absolutely anything I want with *MY* pix, including selling them to a magazine. The photographers, and apparently the law, assume that the photographer actually owns the pix and what I paid for was a few prints that I have no rights whatsoever to do anything with but hang up and look at.

This, I think, is why its important for pros, in any field, to tell their clients exactly what's going on. If I were in basil1's situation I'd feel that I'd been ripped off, and that the law was collaborating with the photographer to screw me blind simply because of my (naive, or at least uneducated) assumption that since the photographer did the work I paid him to do and therefore the results ought to be mine.

Obviously that isn't the case, but unless it had been explained beforehand I'd have assumed it was, and I'd feel (as I presume basil1 feels) that I'd been burned. I think its self evident that the photographer had such a deeply ingrained belief that the pix were his, that basil1 would have no rights to the pix, that he didn't think it was necessary to explain this.

Conflicting worldviews
posted by sotonohito at 12:26 PM on February 17, 2009 [2 favorites]


When dealing with photographers there is usually should be two different prices, one for prints of a photo, and the other is for rights to a photo. Usually when I am taking photos for someone I make it clear what they are getting, and it is documented. the fact that the photographer was non-communicative about it is sucky.. but yeah as others have said, likely you own the prints not the photo, and that means not being able to replicate them for purposes where you would gain.
posted by edgeways at 2:32 PM on February 17, 2009


"You don't need a model release for photos of sculptures."
No, but aren't sculptures copywrite-protected works?
posted by Good Brain at 3:45 PM on February 17, 2009


ug "copyright"
posted by Good Brain at 3:45 PM on February 17, 2009


You don't need a model release for photos of sculptures.

Correct, of course, but you do need a property release.
posted by rhizome at 4:15 PM on February 17, 2009 [1 favorite]


Correct, of course, but you do need a property release.

Correct, of course, but only for commercial use. Editorial use, which is what this magazine and all other magazines fall under, thankfully does not require releases.
posted by msbrauer at 4:58 PM on February 17, 2009 [1 favorite]


If you don't have a specific contract that says otherwise, the rights to the photos do in fact lie with the photographer, not you. Found that out the hard way one time when a woman promised my publication that it could print photos taken of her, only to have the photographer balk and stand on her rights to the images. As it turns out, the photographer had already, without the woman's full knowledge or cooperation, signed a contract with another magazine to provide exclusive access to the photos.

In your case, I would guess the photographer likely just wants to get paid for any reprints of the photos he took, which is, alas, his right in this situation. I'd talk to your contact at the magazine and ask what the art department situation is there. Does the art department have the budget to pay even a little to reprint the photos? Alternately, if the magazine's art department can't/won't pay for the photos, or if your contact isn't in a good position to ask (you may have noticed all those headlines about magazine budgets getting cut lately), check with the photographer yourself to see if you can agree on some sort of out-of-pocket compensation you might pay, if it's in fact important to you to see those photos appear in this magazine.

The photographer may come around if there's the possibility of some sort of remuneration—while coverage in a magazine can be considered a form of remuneration in itself, it may be that he's balking because he thinks working for "coverage only" devalues his work. Or because he just wants to get paid. If you approach it from a standpoint that takes into account those possible points of view on the subject, you may find him open to dialogue. E.g. "Hey, I'm not trying to get something extra for free here, I just didn't know that I needed to specify reprint rights beforehand, and now I have this opportunity to have these photos of my work reprinted in XYZ magazine. Could I pay extra to secure one-off reprint rights for the photos in question? Or could I even pay a little more extra to secure reprint rights for XYZ period of time, in case other publications also want to print photos?" Unless he has some other money-making use in mind for the photos, he may be satisfied with even small compensation for allowing the photos to run.

Then, once this is all over with and you've learned that particular lesson about copyright law, either never use that photographer again or bring your own lawyer along next time you hire him. It doesn't sound like he's particularly interested in being open with his customers.
posted by limeonaire at 5:39 PM on February 17, 2009


The photographer may come around if there's the possibility of some sort of remuneration—while coverage in a magazine can be considered a form of remuneration in itself, it may be that he's balking because he thinks working for "coverage only" devalues his work. Or because he just wants to get paid. If you approach it from a standpoint that takes into account those possible points of view on the subject, you may find him open to dialogue. E.g. "Hey, I'm not trying to get something extra for free here, I just didn't know that I needed to specify reprint rights beforehand, and now I have this opportunity to have these photos of my work reprinted in XYZ magazine. Could I pay extra to secure one-off reprint rights for the photos in question? Or could I even pay a little more extra to secure reprint rights for XYZ period of time, in case other publications also want to print photos?" Unless he has some other money-making use in mind for the photos, he may be satisfied with even small compensation for allowing the photos to run.

This is the best strategy to take. The photographer in question is giving all the rest of us a bad rep and shooting himself in the foot by not volunteering a new license for one-time publication to either you or the magazine. Doing so is how photographers make a living--well, it's one way; gotta have a lot of irons in the fire--and that's the best way to proceed here. Get your hands on a trial version of fotoquote and you can see what a fair market rate is for one time publication in a magazine of such-and-such circulation size, etc. To be sure, it's the magazine that should be paying this fee.

Since I imagine you were initially looking for pictures of your own work that you could then use however you please, there are a couple of options. First, you can take the pictures yourself. Second, you can hire a photographer and either do a full buyout of the pictures (which is very expensive; tens of thousands of dollars, perhaps):

PHOTOGRAPHER licenses THE WORK to ARTIST for SUCHANDSUCH usage and distribution in SUCHANDSUCH media for a period of X months/years.

But since this is rightfully expensive (as a photographer has an expectation of not losing money in a business arrangement and since you would be buying out what is essentially a part of the photographer's retirement fund), you could limit the media that ARTIST has distribution rights for, such as the local paper, your own portfolio, facebook, and so on. This keeps your cost down, makes clear what kind of usage is allowed, and, importantly, leaves the door open for future licensing. All you need to do is send an email or call the photographer and say, "Hey, a publishing company wants to use that picture you took of my sculpture on the cover of a book, can you give me an estimate?"

This sort of licensing scheme is used to protect the photographer from his work being exploited for profit. Imagine a situation where the photographer's picture of your work has been selected for use as an album cover or an advertisement. The photographer has a reasonable expectation that he should be compensated for his work just as you would. Of course, in that instance, your work would need to have a property release, which is the step in the process where you would likely be financially compensated for your role in the creation of the picture.

As with any discussion of freelance work and licensing, the most important maxim to remember and repeat is "Always use a contract." The second, of course, is "Talk to a lawyer," which I am not.
posted by msbrauer at 8:27 PM on February 17, 2009


There could be legitimate reasons why this photographer doesn't want those photos published.

Maybe he doesn't like the photos and doesn't want them published with his name attached. Maybe he's worked with this magazine before and had a bad experience with them.

It's one thing if he would rather license the photos himself, but if he doesn't even want to do that, I wouldn't try to push the matter, and I don't think you should think he's wrong (even per se) for trying to control the distribution of his work.
posted by girlmightlive at 8:13 AM on February 18, 2009


Response by poster: You guys rule. So much good advice for the future, really appreciate it.
posted by basil1 at 4:55 AM on March 29, 2009


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