Who Really Owns That Picture of You?
Posted by Jayne Huddleston on February 15, 2009
Who owns a photo of you? The answer may surprise you. In all but a few cases, the photographer owns the photo and all rights associated with it.
One exception would be if the photographer were commissioned by a third party (possibly a magazine or corporate sponsor) at the time it was shot. Even in this case, it would have to be specified in the agreement between the photographer and the third party for the third party to retain any copyright. Another exception would be, if the photographer were trespassing on private property when he took the photo. That would allow you to stop the use of it and override the photographer’s right to sell it.
If you purchase a photo from a photographer who has taken one of you, all you own is the paper on which that photo is printed. Or, if you purchase it electronically, all you own is the right to print it once for a specific use, unless otherwise specified. The personal use of that print is all that is normally included. You can show it to your friends, hang it on your wall or keep it in a photo album. Any other use, such as publication, posting on the internet, or use in advertising requires another purchase from the photographer. What you are purchasing is the “right” to use copyrighted material, for a particular use. The photographer sets the fee.
This becomes a factor in media relations in several ways. Small publications, such as specialty media and community newspapers, will often entice you to break copyright law. After an interview they will ask, “Do you have any photos we could use with this article?” Yes, you have photos, but you do not own publication rights to them. Legally, it is between the publication and the photographer to establish those rights. Yet, too often, the subject of an article just hands over their favourite photo for illegal reproduction.
People who are in the public eye also often have websites. Reproduction of a photo on a website is equivalent to publication. It is NOT like hanging it on your wall. It is in the public domain. Websites are also, in some cases, considered advertising. Use of photos in advertising is more expensive than editorial use, because the user is expecting to make money from the use of this photo.
The digital age has created another thorny issue in photo copyright. Scanners with home computers make reproducing anything easy. If a magazine publishes a photo of you (that they had all legal rights to use) that does not give you the right to reproduce it. Read the small print in the front of any magazine and it will say something like “Reproduction of any kind in whole or in part is strictly prohibited by copyright”. Reproduce that photo layout of yourself, and put it in the public domain, such as on a website or in an advertisement, and you have two possible opponents in court. In most cases, the publisher and the photographer would both have copyright violation cases against you.
The question of who owns your image is a different issue and an issue for another post. Obviously, there are non-editorial uses of photos where your permission is required to use your image. Even in those cases, the rights to the photo belong to the photographer. You may make a deal with a sponsor who wants to use your image. That is between you and the sponsor. The right to use the photo is between the sponsor and the photographer.
The only time you would have copyright to a photo of yourself would be if you commissioned the photographer to take it and had a provision in the agreement giving you copyright. Copyright law is so sweeping that the exclusive rights to photos (unless otherwise contracted) remain with the photographer, or his estate, for fifty years following the photographer’s death.
