A previous column discussed your rights to TAKE photos and videos – who and where. What can you and others legally DO with the images? There are 2 main issues: copyright law and (if you’ve photographed people) laws on rights of publicity.
Copyright protects your original photos and videos, and your rights to make, sell, or distribute copies, adapt, and publicly display your work. This includes the right to prevent or limit others from doing those things. If multiple people collaborate on a project, they equally own a joint copyright (unless a written agreement says otherwise).
The moment you take a photo or video, you automatically own a common law copyright, even without registering it with the U.S. Copyright Office. However, without registration, your remedy is usually limited to having a court order an infringer to stop. Voluntary registration has these benefits:
- creating the presumption of validity,
- allowing you to recover statutory damages (without proving actual damages),
- allowing recovery of attorney’s fees,
- greater leverage on an infringer, and
- better deterrence.
The U.S. Copyright Office offers online registration. Fees apply.
Practical tip: Whether you register or not, putting the symbol © and your name on the photo or video puts others on notice of your rights and may deter misuse.
Who owns the copyright? Usually, it’s you, the photographer, but there are exceptions. If you are an employee (e.g., photographer for a newspaper), your employer owns the copyright. If you are independent but there is a written contract with a “works for hire” clause, then whoever hired you owns the copyright (e.g., a contract for taking corporate headshot photos). When you own the copyright, you can by contract allow others to make limited use (a license) or full use (an assignment) of the photos. For example, a wedding photographer’s written contract may license the couple to post the photos on social media but may forbid making physical copies. The Copyright Act contains a blanket exception allowing anyone to make what is called “fair use” of a copyrighted image for particular purposes without the owner’s permission, like educational uses or for critiques.
Practical tip: A written contract is best to avoid misunderstandings over who owns the images and how each party can use them. If you didn’t draft the contract, read it carefully before signing to avoid accidentally giving up important rights.
A word about social media: each platform has its own Terms of Service (TOS) that govern uploaded content. Typically, you own your original content you upload, and you give the platform a license to post/distribute it according to your account settings. You have setting choices for who will see your content. Also, currently Facebook and Instagram let you change your settings for a particular photo or video, and Instagram allows settings that prevent reuse by others.
If you photograph or video a person and they haven’t signed a release, can you use the images without having criminal or civil liability for violating publicity laws? The answer depends on several factors:
- There is no national law on this topic. State laws vary, so the answer depends on where the photo or video was taken. North Carolina has no statute giving the subject a right to control their publicity through the photo or video, with one exception. The “revenge porn” statue creates criminal and civil liability if sexually explicit images are published/posted without the subject’s consent. Some states have broad statutes allowing subjects the right to control where and how any photo or video of them is used.
- If you make money from using the photo or video, the subject may have a claim against you for compensation. North Carolina recognizes the civil claim for misappropriation of one’s image for commercial or financial gain.
- If you are entering a contest or exhibit, check the rules on this topic.
Consider the ethics of using a person’s photo without their consent, even if you legally can. What if you inadvertently put a domestic violence survivor in danger by exposing their location? What was the person’s reasonable expectation of privacy where they were photographed – e.g., on a public street vs. in their back yard?
Practical Tip: Carry a short release form with you and, when feasible, ask the person you’ve photographed if they will kindly sign it. If they do, then you don’t have to worry.
Kim K. Steffan is an attorney with Steffan & Associates, P.C. in Hillsborough. She can be reached at (919)732-7300 or kim.steffan@steffanlaw.com.