Let’s face it:  a lot of websites feature bad pictures of people.  They use photos of owners, workers, and customers that are of poor quality because they’re poorly composed, poorly lighted, and poorly executed.  The easy solution to that design flaw – the one that costs a few dollars – is to hire a professional photographer to take a new set of photos.  Unfortunately, an unscrupulous photographer or a carelessly drawn agreement with a photographer can ruin your week, so here’s what to look out for.

If you want to hire a photographer to take photographs for your business, then you should have a clear, written agreement describing either that the copyright in the photos is being transferred to you or, if not, then setting forth precisely what rights of use are being licensed to you, for how long, and for how much.  If a dispute were to arise between you and the photographer as to whether a particular use was permitted and there’s no clear agreement, a court reviewing the issue is going to have to look at all of the surrounding circumstances to determine the scope of any implied license.  For example, if you ask a photographer to “take pictures of your staff for your website”, and you then use those same pictures in printed marketing materials and as avatars on social media, then there’s a possibility that you’ve infringed the author’s copyright by exceeding the scope of your implied license.  If you retouch the photos, or combine them in a way so as to create something new from the initial photos, then you may have infringed by creating an unauthorized derivative work. 

Reputable and experienced photographers will tender agreements for photo shoots that clearly spell out what the permitted uses are, and what rights the photographer is going to retain.  Depending upon the use involved, the price may go up.  The pricing structure can vary, subject only to the imagination of the parties to the agreement.  For example, web uses could be unlimited and perpetual, for a single fixed price, or they could be periodic and vary based on number of page hits.  If you’ve got a clear agreement in advance as to whether additional uses will be permitted in the future for a specified fee, then you avoid the unhappy circumstance where you return to the photographer at a later date and the photographer’s price has gone up. 

This problem arises because of how the law defines an “author”, because the “author” of a work usually owns the initial copyright.  When you take a photo with your own camera, you’re the author of that photo.  Now suppose that you ask someone else to take a photo of you using their camera.  You don’t own the camera, you didn’t compose the shot, and unless you have the photographer’s permission, you can’t even get access to the photo.  It has to have some owner, so the law vests ownership of the photo’s copyright in – again – the photographer.  But now there’s a problem, because the photo isn’t useful to you for publicity purposes if you don’t have any of the rights of a copyright owner.  It also isn’t useful to the photographer because you haven’t given the photographer’s a model’s release that would permit the photographer to extract some monetary value from the photo.  At that point, the photograph is begging for some kind of agreement between you and the photographer regarding a redistribution of rights to the photo. 

The Copyright Act strikes a balance by creating a set of default rules that place the ownership of a “work made for hire” in the person doing the hiring.  If your photographer is employed by your company as a photographer, that’s great for you because you own the copyright in your capacity as employer; that’s implied by the interaction between the first definition of “work made for hire” in 17 USC § 101 (“a work prepared by an employee within the scope of his or her employment”) and the ownership provision in 17 USC § 201(b) (“In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.”)

If the person you hire to create photos is an independent contractor, though, the work is only a “work made for hire” if it falls into one of nine specific categories of content set out in 17 USC § 101, and standalone still photography isn’t one of them.  The photos used to illustrate a website could conceivably be works made for hire  under the exception for “supplementary work”, but even in that case the parties need to agree in writing that the photos are a works made for hire.   

As the web has become the primary means of communication about businesses, and as digital photography has replaced print, this little quirk of copyright law has huge implications.  In the olden days of film photography, it was pretty easy to limit distribution.  Photographers who retained the copyright in their photos would be sure to hold onto the negatives.  If you wanted 100 copies of a headshot for purposes of sending to casting directors, then you’d ask the photographer for 100 prints and you’d be charged for them.  When you needed more, you’d buy more.  If you needed one in a particular format for print reproduction, you’d ask the photographer to supply it.  Today, though, limiting redistribution is hard from a technical standpoint.  If the photographer delivers a high resolution, printable file containing a photograph, it’s very difficult to limit redistribution.  The ease with which redistribution can take place tempts anybody who has access to the “copy” and “send” functions. 

If you don’t want to face the ire of an angry photographer seeking statutory damages for copyright infringement, the best thing that you can do is to deal with reputable photographers who’ll give you the license that you need, and not just the picture that you want. 

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