Advice - Photography / Copyright
As the author of a photograph - that is, the person who creates it - a freelance photographer is the first owner of the copyright in it. (Under UK law, in the case of employees, the first owner of the copyright in photographs made in the course of their employment is the employer.)
This applies equally to commissioned photographs and to those which are not. This was the major photographic reform enshrined in the Copyright, Designs and Patents Act 1988 (see the link below for the text of the Act).
Under UK law, only the copyright owner can licence the copying of a photograph. That means reproducing the work in any material form, which includes storing the work in any medium by electronic means. Only the copyright owner can licence the issuing of a photograph to the public .
Photographers are frequently put under great pressure to surrender this hard-won right, but are strongly advised never to do so. There are no uses to which a client might wish to put a photograph which cannot be covered by the appropriate licence for an appropriate fee, and such licences should be agreed at the time of commissioning new work, or of seeking permission to reproduce existing photographs.
Even where the client actually needs exclusivity, either for commercial reasons or to protect individuals depicted, the photographer should retain the copyright itself, which can only be sold outright through an "assignment", which requires the photographer's agreement in writing.
Clients have in the past tried to circumvent this law by insisting on the photographer's signature on the back of cheques beneath a form of words that claims to assign copyright to the client before such cheques can be cashed. This has, however, no legal force, and though photographers are advised to delete the offending words before signing, failure to do so does not in fact assign copyright to the client.
Purchase order terms and conditions are often intended to transfer ownership of copyright to the client. Photographers should protect themselves by stating their terms before accepting commissioned work, and even though these cannot be rendered void by subsequent paperwork, photographers should protect themselves by rejecting in writing any such attempt to seek assignment of copyright.
Photographers are entitled to extra money from companies and organisations that photocopy their published work. To be sure of receiving this, and other payments for such "secondary uses", photographers need to register with DACS. This is free to NUJ members. See the links below. How these payments generally work is that libraries, press offices and others who do bulk copying pay a licence fee to the collecting society. This arranges a survey of a sample of licensees, to work out statistically how to distribute it. Efforts continue to deliver the share of this money due to newspapers' contributors. DACS also distributes money collected for secondary uses in other countries.
DACS collects and distributes certain payments due to photographers by default. Any photographers who want to opt out of this arrangement should contact the Freelance Office.
UK law defines a strictly limited number of ways that photographs can be used used without the photographer's permission or payment to them, such as including them in exam questions. These uses are called "fair dealing" - the equivalent exceptions in US law are called"fair use". See the consolidated version of the Act (linked below) for details.
The important moral rights are the right to object if your work is distorted, and the right to an accurate credit. These are obviously important to protecting and to spreading your reputation - and without your reputation you have no work. Any pressure to "waive" these rights needs to be resisted.
Text © Mike Holderness & previous contributors; Moral rights asserted. The collection (database right) © National Union of Journalists. Comments to firstname.lastname@example.org please. You may find the glossary helpful.
The National Union of Journalists must not, can not and would not wish to dictate rates or terms of engagement to members or to editors. The information presented here is for guidance and as an aid to equitable negotiation only.
Suggestions apply to contracts governed by UK law only. In any event, nothing here should be construed as legal advice.