Legal Aspects of Photography You Need to Know

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Photography is a great hobby, and like most hobbies it’s one you can use create an income stream using a little creativity and hard work. There are a lot of ways you can earn money with photography besides quitting your day job and becoming a professional photographer. Whether you’re an amateur looking for a side hustle or a professional photographer, you can sell anything from portraits of loved ones to landscapes. Before you start selling your photos, however, there are several legal issues you need to consider. To avoid future hassles, learn these terms and follow these tips:

Legal Terms You Need to Know

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Before we dive in to selling your work, familiarize yourself with these need-to-know legal terms and phrases:

Legal Terms for Photographers

Editorial Use: Permission to use photos in blogs, articles, and other publications.

Commercial Use: Permission to use for advertising purposes to promote products and/or services.

Retail Use: Sometimes used interchangeably with commercial use, but slightly different. Retail Use means permission to use in the creation of a physical products including prints, posters, and other products with the photo such as pillows, mugs, etc.

Exclusive and Non-Exclusive: Whomever purchases the license for your photo is the only one who can use the photo, meaning you can no longer use the photo yourself. Non-exclusive photo licenses can be purchased and used by anyone and cost less.

Public Domain: Holds no restrictions or copyright claim and can be used for any commercial, editorial, or personal uses.

Creative Commons: Conditional usage of your photo is allowed if usage is in compliance with certain restrictions, most commonly giving credit the creator. You can generate a badge for this license for free at Creative Commons

Royalty-Free: This is the most common type of license purchased and is usually cheaper since these photos are generally non-exclusive. Royalty-Free means others can buy a license and use the photo for an unlimited duration and number of times.

Rights-Managed: A one-time license can be purchased to use the photo with restrictions regarding distribution. As it’s only good for one time use, additional licenses must be purchases for additional uses.

Right of Publicity: Subjects of your photographs are entitled to certain rights when it comes to their inclusion in your photography, especially when it comes to commercial use. This is a separate concern from the copyright considerations above and you should seek explicit permission from the subject before using their photograph just to be safe.

Protect Yourself from Lawsuits and Confusion

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 Step 1 - Ask Permission

Always (always, always!) ask permission before taking a photograph you intend to sell. Permission may be required before use of photographs of people, landscapes, buildings, property, works of art, and even landmarks. Most works of art are protected by copywrite. Additionally, buildings erected after December 1st, 1990 are also protected under this law. Copyrights protect the 'creator' or 'artist' from reproductions of their works of art. A photograph is considered a reproduction of this work and is therefore legally protected. When in doubt, err on the side of caution and get permission.

Step 2 - Draft a Release

Draft Copyright and Permission Release documents that grant you permission to take and use photographs for commercial purposes. You can draft one here but be sure to edit and tweak them to meet the individual needs of the project you’re working on.  If you’re a professional photographer, it’s probably a good idea to hire an attorney to draft these documents for you.

Step 3 - Get Your Legal Documents Signed

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If you are using photos of people, simply asking their permission is not enough. You need to make sure they commit in writing.  Ask them to sign off on your waivers and release documents and avoid any future confusion.

Step 4 - File All Your Records Away

If you frequently use people as the subjects of your photographs, it’s important to stay organized in case legal issues arise in the future.  Keep all your release documents together with copies of the photos themselves locked away in a safe or file cabinet. Trust me, this will save you a headache in the long run. If someone challenges your rights to your photos, or the rights you have acquired or obtained, you can easily defend yourself by retrieving your paperwork and showing them the signed release and copy of the photograph. Without this proof you could be vulnerable to lawsuits and other legal ramifications.

 

Protect Your Work

Use a watermark

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If you’re putting your work out there to try and sell your images it’s important to protect yourself from theft, which is unfortunately a common problem for photographers. It’s common practice for photographers to watermark their images before selling them online to protect them from theft of their images. If you’re going to sell your own photos, you can apply your own identifying watermark in Photoshop or using watermark generator available for free online.

Using a small watermark unobtrusively in a corner identifies the photo as yours while still letting others enjoy your photo and using a large tiled watermark across the whole photo with reduced opacity offers maximum protection against theft.

How do I get a Copyright?

Copyright is automatic upon creation of an original work of authorship. With regard to photography and with few exceptions every image obtains its copyright upon creation. There is often a misconception that you must ‘do something’ to get a copyright which is not true. No, you don’t have to mail yourself a copy (the “poor man’s copyright”). The current Copyright Act does not require any filings to obtain a copyright, however, if you wish to pursue an infringement lawsuit you will first need to register your work with the Copyright Office of the Library of Congress (find the application here).

Know What You Can and Cannot Photograph

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There seems to be a lot of misconceptions and confusion surrounding which people, places, and things you’re legally allowed to photograph and what things you are not legally allowed to photograph. As a rule, you can photograph public places and people in those public places where there is not an expectation of privacy. You can photograph the outsides of buildings and people in public for personal use, however if you intend to sell those photographs it’s important to ask permission and get the necessary signed documents prior to commercial use. Of course, common sense applies.

If you’re photographing a large crowd at a demonstration, then obviously you do not need to get the permission of the entire crowd.  However, if you’re focusing all your shots around one individual at the demonstration then you will need permission to use those photos commercially.  If you’re shooting city scenes and taking pictures of the skyline then it’s not necessary to get permissions from each individual property owner. However, if you’re taking multiple identifiable images of one building and intend to publish or sell them, it’s a good idea to get permissions first from the property owner or building manager. That said, there are certain places and things you may not be allowed to photograph and its important exercise extra caution when taking pictures of these:

Military Installations- Not allowed.

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Airports- security checks- Not allowed.

Museums & Galleries- Almost never allowed, often there will be signs prohibiting it.

Religious Institutions- Check with each individual Church/Synagogue/Mosque as they all will have their own rules regarding photography. Most will not allow photography during the service or of patrons.

Police- While technically allowed, it’s wise to ask permission first (and if told know respectfully accept the response and walk away).

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Children- Please, always ask permission from the parents first for obvious reasons.

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