Photographers Start to Give Up on Copyright Restrictions

Photography: Kevin Sommers

For photographers, the ownership of images seems obvious: they had the concept, set up the shots, used their creativity, drew on their technical skills, and produced beautiful photographs. The results belong to the artists who created them, and they’re the ones who should get to control how the photos are used. For clients, that attitude can come as a surprise. If they’re hiring a portrait photographer or an event photographer to take pictures of them or their wedding, then they should own the pictures. After all, there wouldn’t be any images if they hadn’t approached the photographer, and they are paying plenty of money for them to be created too.

Copyright law sides with the photographer, but that conflict between who should own the images and what the client wants do with them is often a source of tension between photographers and the people who commission them. When those clients aren’t professional image buyers but occasional users, the result tends to be a lot of small-scale copyright breaches. Wedding clients print out the images on their DVDs, email photos to friends, and make copies of the DVD to share with family. On that scale, photographers tolerate it. The smart ones even encourage it, using the sharing as a form of viral marketing, especially on Facebook.

Ignoring Usage Restrictions

But some clients take things a little further. People who need portraits taken for professional reasons — such as to advance a singing career — may either be unaware of the usage restrictions placed on their images, or they may simply choose to ignore them, passing out their headshots and publicity photos to anyone who needs them regardless of the small print in the photography contracts, and any fees that are supposed to be paid for each use.

It’s a problem that has led one photographer to redefine the usage license of the images he produces. Kevin Sommers is a former lawyer married to a retired copyright attorney. After spending several years at a large corporate law firm then running his own law firm, he found that he missed the creativity he had enjoyed in a previous job as a commercial advertising photographer for Caterpillar. He turned his 100-year-old law office building in Nashville into a studio and set himself up as a professional photographer specializing in portraits, model portfolios, music promotion work and headshots.

Like other photographers, Kevin requires clients to sign a form declaring that he retains copyright ownership of his images. Clients, however, are then granted a limited release to copy, post and distribute the images for personal and self-promotional use. The license doesn’t apply to third parties but it does give clients the flexibility to print modeling comp cards, headshots and other marketing material without returning to the studio for a release. It’s a solution, Kevin explains, that’s convenient for both sides.

“They often need to provide an image quickly when a newspaper, magazine or agency needs an image and I do not want to hold them up in case I am not available right then,” says Kevin of his clients. “I travel several months of the year and this is the most practical for everyone involved.”

Singer Beau Davidson, for example, has submitted Kevin’s images to InTouch Magazine, The Tennessean, Cosmopolitan and other media outlets. Kevin receives a credit but Beau Davidson doesn’t have to contact Kevin before each use — and he doesn’t have to pay an extra fee for each publication or pass the bill on to the magazine.

But it’s not just the convenience of not forcing clients to wait for him to issue a release that has led Kevin Sommers to waive fees for those usages. There’s also the inevitability that the pictures would be used anyway.

“I also realize that since they get their images from me in CD or DVD form, they may be used even without the release,” he explains.

Don’t Sue If You Can’t Collect

To some photographers, that may sound like an expression of defeat. A photographer’s biggest asset is the collection of images that he or she builds up over a career. Allowing clients to use those photographs without additional payments, and worse, not chasing down illegitimate use may lower the value of those assets and encourage even more copyright abuse.

To Kevin though, it’s about practicality. As a lawyer, he points out that legal cases can be costly, lengthy and emotionally draining. Each photographer, he says, has to decide on a case-by-case basis whether a copyright infringement is serious enough to pursue. Because his clients are mostly young singers, taking their first steps in the music industry, he says, he has little to gain by taking them to court.

“Winning a judgment does not mean much if you cannot collect it,” notes Kevin. “That should be the first thing they teach in law school.”

But changing usage licenses to acknowledge that clients will use the images the way they want anyway is only one aspect of the change that Kevin Sommers’ contract brings to photography. It also marks a change in one aspect of the photography business model. Photographers may earn most of their income during the time it takes them to shoot and edit the pictures, but the profits for printing images over which they retain reproduction rights can provide valuable extra income. In an atmosphere of intense competition, that’s a benefit that’s quick to disappear. Clients aren’t dumb, says Kevin, they know when they are being overcharged for “print packages” that give them more than they need or want. Letting portrait clients, for example, print as they want saves them money and makes his offers more competitive.

More importantly, Kevin, who usually charges between $300 and $575 for a shoot, sees his job not as a printer but as a photographer. He wants to let the client worry about what to do with the pictures while he focuses almost entirely on creating the shot.

“I… personally do not enjoy the tedium of filling print orders,” he explains. “I am in the business of taking portraits, not selling prints at outrageous rates.”

Kevin acknowledges that his model isn’t going to suit every photographer and every photography business. But it does suit him. The question is how many other photographers find that it’s a solution that suits them too — and whether it will relieve the tension between photographers and the clients who commission them to create pictures.

14 comments for this post.

  1. Rich D. Said:

    Protect, protect, protect your copyrights. Please. You own them like any other piece of property, and they will help put money into your pocket.

    I was photo buyer before I became a full-time photographer. People who purchase images have little to no training about copyrights. I had to educate my boss that we couldn't publish photographs laying around the office without receiving a license from the photographer.

    I disagree about no suing. ALWAYS sue. There are statutory penalties for unauthorized use. If the penalties are high enough, a lawyer will take it as a contingency case. He will get a judgment in your favor. Once you have a judgment, he will pursue the collection until you get something from the defendant. It may take years, but money will eventually arrive.

    There is no reason not to offer print services. So many professional sites will handle orders and fulfillment for you. There are "picture people" who love buying photos from weddings and events. Over time, my print sales have grown to equal my service rates. I simply upload, promote the gallery and wait for orders. It doesn't eat up much time.

  2. Larry Eiss Said:

    Thanks for posting this. It aligns well with my own thinking on the matter. The photography market has changed and we need to change with it. I found it particularly refreshing to read of Kevin's preference for photography over fulfilling print orders. I share his viewpoint. I think the opportunity to make money selling the creation of images will increase as the overall cost goes down due to this type of approach. In my view, that is likely to more than offset any loss of residuals or long-term income for most photographers. Now, if you are Annie Lebowitz, or Joe McNally, maybe not so much. heheheh

  3. JH Said:

    If I charge a fee for the shoot, I give the client their images with no encumbrances for day-to-day usage. It is no different than any other work-for-hire situation, such as a musician recording an album for their label. I got paid for my creativity in the fee I charged them. I'm still more than happy to provide prints at a reasonable rate (basically cost plus a little extra for my time in handling them) too, but if they want to take them down to Wal-mart and make copies, they're more than welcome to do so. I do leave stipulations in the contract that should the image be used in a magazine or some other unanticipated usage, I need to be contacted for permission to do so.

    Now if I do the shoot without being provided any fee for doing so, then of course that is another story altogether and reproduction rights are not given. I rarely do this anymore unless the customer absolutely refuses to pay an up-front fee.

    Regardless of how you want to do it, my best recommendation is to be up front and direct on what the customer can and can not do with the images before they are even given the contract to sign. Don't bury it all in fine-print then go sue them when they make copies to hand out at their next event. Explain to them in plain English what they are getting and any restrictions, so that if they ever do violate the terms, there is no question that they knew what they were doing. Even 10 years ago it was expensive to get quality photo reproductions done, and therefore it was a given that a customer would have to buy their prints from the original photographer. Now that anyone can have more prints made for pennies, it is up to us as the professionals to explain why it is not OK to do so.

    The other thing to keep in mind is it is becoming inexpensive for consumers to buy "pro-grade" camera gear. This means there is now some serious competition not only for reproducing, but for the photography itself. We need to learn to adapt ourselves to this changing market or we'll be left wondering where our source of income went. The music and movie industry is feeling this pressure now. They're doing everything in their power, and failing, to maintain their antiquated control over the market. They're alienating not only the musicians that provide their product, but the customers they sell the product to. If we put some thought into it and find ways to balance what the customer wants and expects with what we need to maintain our business, we'll benefit. I think this article is a good example of providing that balance. Unfortunately Rich D. above proved an example of grasping onto that old-school train of thought, and as long as that attitude is maintained the image of our whole profession will suffer.

  4. Lance Said:

    There are many companies, including mine [National Photographer Group, llc] working in unison to bring about change as it applies to image licensing and usage rights in terms of simplifying the terms, solidifying the deal and enforcing the conditions. The foundation has been in building progress for years now and we're just about ready to roll out the framework to finally give photographers, both large scale and small scale, the power to sue when their images are used outside the conditions of the license.

    If you don't protect your copyrights, you have no copyrights. SUE!

    What's more is that many of the popular image editing software programs are not compliant with the various licensing platforms in the works [PLUS and Creative Commons]. Compliance is spreading to include search engines, web hosts and even our laws.

    This is kind of a big deal.

  5. Lance Said:

    I mean "are NOW compliant". Sorry.

  6. Austin Curtis Said:

    From a Wedding Photographer's point of view:

    I agree with Rich D above in that uploading photos to an Online Gallery is relatively painless and worth the effort, especially for those 'picture people'. Also, it's a way for clients to share their pictures with others - which is good exposure for us. However, there is no way that print sales will ever become half of our income, EVER. We educate our clients that Costco is not a printing house, but it's inevitable. And yes, everybody wants the option to buy out their digital negatives.

    As far as suing goes however, we will never sue a client, unless they have somehow made a lot of money selling the images or something. Suing is never good for business. "My wedding photographer is suing us" doesn't really have a good ring to it.

    Because of Facebook's shady privacy policies, the only "smart" photographers who allow their clients to upload to Facebook are the ones provide watermarked images and specify that ONLY THOSE may be uploaded online. We can't leave it up to the client to put the copyright info under every pic.

    One copyright problem that we wedding photographers are having is that brides are becoming their own publicists. They want to see their images on a wedding blog or magazine and they don't think they need our approval or creative input. It may be great exposure, but even if we are giving them finished images - there is no way we are going to forfeit our right to help choose the photos and how they are going to be laid out.

    That's my 2 cents. GREAT discussion!

  7. Robert Said:

    I just got to this article by mistake and found the topic interesting. I do not know anything about copyright of photos, but I am old and believe also in common sense. I believe that a photographer is an artist and his work should be appreciated and paid for. But there is a difference when a photographer creates a picture on his own inspiration and a one that was requested and paid for. If I go now to a local paint gallery I can buy any painting and I can resale it, give it away or destroy it. I can contract someone to make a painting of me and will be the same. Is the same for a sculpture, a movie or a music cd. Why it will be different for a paid photo.

    Again forgive my ignorance, and I hope to learn from the responses. Keep the great work!

  8. Bernie Said:

    I offer two deals. Pay a fee and get some finished pictures in various file formats with rights to use online and print. Or pay no fee but pay substantial rates for online use or prints.

    First time clients usually opt for the second option.

  9. TheVelvetKitten Said:

    @ just giving your images on disc you are saying that those images have no value. When in actuality they have more value than say a print,because of the number of prints that can be used,or how they are used. The only way I see this being beneficial is if your upfront fee includeds hte "cost of those prints plus your time processing them as well as shooting them.Otherwise,you are partially working for free.

  10. TheVelvetKitten Said:

    Times may be changing,but how does that equate to less value of our time,talents and products. It doesn't,imho and honestly I am sick of people preaching this view which is devaluing this industry. It is our lack of tenacity in enforcing copyrights that has gotten us in this mess.

  11. Rich Green Said:

    I agree with The VelvetKitten/

  12. Aussie pro-copyright Said:

    Robert, in response to your comments..

    There is a distinctive difference in the field of photography and that is the fact that our work can be reproduced with very little effort, no loss in quality and without the original creator receiving any form of credit.

    In the case of painting and sculpture you can't email a copy to your friends or burn a CD with a selection of your favourite sculptures or paintings! What you've purchased is a one-off piece and you will have paid a premium for that, also the artist's credit is generally distributed with their work.

    Your reference to musicians is very similar to the situation photographers are in - they record music and are paid by their label, they then receive royalties whenever that music is distributed, used in any way etc.

    Essentially what photographers are trying to do is stop their work being "pirated" in the same way the music and movie industries do. Software licensing is another example - if you buy a copy of Photoshop does that mean that you now "own" it and can make copies and give them to your mates?

    Hope this clear things up for you, and happy to have a clearly intelligent individual asking these questions =]

  13. Rae Merrill Said:

    I do a hi-rez wedding service. I'm happy to share copyright if they are paying for that. Why not? It's their big day and they are paying for all the costumes etc. I think where social photography is concerned some photographers may be overly protective of copyright as the photos most likely wont have much value for anyone other than the client.

  14. Canadian Photographer Said:

    In Canada copyright belongs to whomever commissions(defined as providing retribution to photographer to capture the images) the work and not the photographer.

    Unless the client agrees to sign a copyright release prior to signing off on an order or paying for their wedding package, they own the copyright. It is up to them to release the images to you, for whatever purpose is agreed upon.

    If you accept payment for a session, you have to hand over the original images and any copies, regardless of your want or need to sell prints etc.

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