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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: see the advice on Employment status.)You are the owner of commissioned photographs as much as of those which are not. Getting this recognised in the Copyright, Designs and Patents Act 1988 was a major win for the NUJ (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 is to say: only the copyright owner can give permission to reproduce 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 not to do so. There are no uses to which a client might wish to put a photograph which cannot be covered by an appropriate licence for an appropriate fee. 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 and negotiate conditions on the use, which can only be sold outright through an "assignment", which requires the photographer's agreement in writing.

Photographers should protect themselves by stating their terms before accepting commissioned work, and by rejecting in writing any such attempt to seek assignment of copyright: see Contracts and paperwork.

Photocopying etc

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 DACS (see link below)..

Fair dealing

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 separate concept called "fair use" applies only to use in the US. See the consolidated version of the Act (linked below) for details.

Moral rights

The most 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.

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The hazards of social media

Publicising your work on social media - Twitter, Facebook or whatever - can be equivalent to leaving a banknote stapled to a park bench. It may not be legal for anyone to take it and use it. But... you know what's going to happen.

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Registering your photos in the US

The United States is unique in requiring that you register photographs to gain effective copyright protection. You should therefore consider registering your copyright in your pictures in the United States if it seems likely that it will be infringed there.

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Text © Mike Holderness & previous contributors; Moral rights asserted. The collection (database right) © National Union of Journalists. Comments to 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.