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Photos, Smartphones, & Copyright

Have you ever stopped to think about our camera-phone culture?

We take so many pictures. Social media, and Instagram in particular, has made each of us into an amateur photographer. What will you do this weekend? Go to a pumpkin patch and photograph the pumpkins? Snap photos of the bride and groom dancing at a wedding? Post a picture of your Bloody Mary at brunch?

When you photograph something like your cat or your own face, the thought is more natural, more logical: I own the rights to this photograph. But what if you are photographing others? What if someone else takes a photo of you? What are the legal implications then?

Photos and Copyright

Your ownership of a photograph fall into U.S. copyright law territory. The “protectability” of a photo as a creative work was once up for debate (which should infuriate photographers everywhere). Now, the general rule is that, in taking a photograph, the photographer is making creative decisions, and:

  • the placement of the subject matter;
  • the lighting;
  • the shading;
  • the angle; and
  • the background

…all of these things factor into the originality and protectability of a photograph.

Unless i) there’s a written agreement somewhere that states otherwise, ii) your work was commissioned, or iii) you are taking a photograph within the scope of your employment (that is, as part of your job), you, the photographer, are the likely owner of the copyright in and to the photos that you take. Breathe easy: this means that your selfies probably belong to you (unless you’re this monkey, though PETA tried to change that).  But it might also mean that the friend that used your phone or camera to take a photograph of you standing in front of the Colosseum at sunset might be the true owner of the copyright in that photo — so think twice before submitting that photograph in any contests.

 Photos and Right of Publicity

Privacy laws vary state by state, but essentially stand for the proposition that a person has the right to control the commercial use of his or her name, image, and/or likeness (for more on this, check out this post on considerations for when a celebrity is wearing your brand). This means that you should take heed when using a photograph of someone else in connection with the promotion of your business or product, even if you took the photograph or are otherwise the copyright owner of the photo. In other words, copyright ownership alone is not enough to use a photograph of another’s face as a part of your ad campaign for your fashion line, or even in connection with advertisements for your photography services. Copyright and right of publicity are two separate concerns in the world of photography.

If you’re a common brunch-photo-sharer, rejoice! You probably own the photos you take. If you are a professional photographer, on the other hand, you might want language in your (WRITTEN!) service agreement that speaks to copyright ownership and your right to use photographs of your clients in connection with the promotion of your business.
For more on using client materials in your marketing, click here.
What’s next? Click here to download your [free] Essential Legal Checklist from Spear IP.
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