Who Owns The Right to My Professional Wedding Photos?

Vodafail on 04/05/2019 - 19:25
Last edited 05/05/2019 - 14:03

Hi Ozbargain community,

We have a question in relation to our wedding photos and would like your thoughts.

Currently we have been given the photos from our photographers from our recent wedding and we would like to post the photos online and wanted to see who ultimately owns the photos.

It is not your usual Facebook/Instagram post, we would like to use selected photos for a website of ours, where we will be using the photo for our business. Our business is a quasi event management business targeting corporates and weddings, we would like to use the photos to set the theme of weddings. The business does not directly compete with the photographers.

My view is that since we have paid for the photos and the photos are of us, our friends and family, we should have the ultimately right to use and distribute such photos.

Any thoughts would be appreciated - we do not want to get in trouble with the law, nor do we wanna give our photographers ideas to charge us royalty/commission from our business.

Cheers,

Old mate

Update 1:

Thank you everyone for your help and comments, it was a very good and knowledgable read.
We reviewed the T+Cs within the signed contract, key points noted below:

  • Royalty free licence is granted to the purchaser for private and domestic use
  • To the extent You hold any IP rights in materials resulting from the agreement, you immediately assign the rights to us (photographer)

I think the Risk Free outcome is for us to credit their image on our website.

Logically I find this quite unique, that we paid for a service and now we have to credit and given them free advertising on our website. It still doesn't sit right with me, but I think its the letter of the law and the agreement we signed.

Alternatively since we have been given royalty free licence of pictures and we gift it to another party (no sale proceeds), Party B. Would Party B be bound to the same agreement that we have with the photographer?

Entertainment

Comments

  • trustnoone on 04/05/2019 - 19:31

    I'm not a lawyer but my guess is usually you are right in:

    My view is that since we have paid for the photos and the photos are of us, our friends and family, we should have the ultimately right to use and distribute such photos.

    I think it comes down to you paying for it makes it yours. But usually any company worth their weight would specifically write up a contract when you went to pay for these photos that they own the photographs or that they're allowed to use it for etc etc and stipulate more to it. So I guess I'm asking is there any terms of service, agreement or contract from the photographer?

  • chumlee on 04/05/2019 - 19:32
    +8

    If you signed a contract check what it says. If no contract was signed, it's not clear cut. Photographer owns the copyright so you need to determine did you pay for the service or service and rights to photographs

    Generally speaking you own the rights for commissioned work such as weddings but publishing them is another matter also

  • garetz on 04/05/2019 - 19:34

    You paid for a service, the service is to take the photos, you own the rights unless you signed a contract beforehand giving up those rights for a cheaper price.

    • JimmyF on 04/05/2019 - 22:01
      -4

      yeah nah

  • spackbace on 04/05/2019 - 19:50
    +8

    Surprised the photographer gave you full hi-res pics without watermarks.

    Have you thought of just asking the photographer if they don't mind you doing that?

    Have you thought of doing a deal with the photographer where you send business each way, refer each other?

    Simple things really…

    • serpserpserp on 04/05/2019 - 20:59
      +1

      This.

      Just ask the photographer.

      The referral idea is a good one.

  • whooah1979 on 04/05/2019 - 19:58
    +7

    The copyright belongs to the artist.

    Commissioned work may be used for private use, in a domestic setting or for the purpose for which the work was commissioned e.g one's own wedding.
    https://copyright.unimelb.edu.au/information/what-is-copyrig…

    • poboy on 04/05/2019 - 20:23
      +1

      Yep. The photographer owns them, but typically gives you personal printing rights in petuity.

    • trustnoone on 04/05/2019 - 20:37
      +10

      Lower down it has:

      Photographs commissioned after the 30 July 1998 - copyright in commissioned photographs is owned by the photographer with the exception of photographs created for 'domestic or private use' (such as wedding photos or family portraits). Copyright in these photographs will be owned by the person who commissioned the photo unless an agreement is signed to the contrary.

      So OP might be the owner (unless another agreement is there).

      • whooah1979 on 04/05/2019 - 20:51
        +2

        we will be using the photo for our business.

        OP wants to use the work for their commercial business. They've to get the artist's consent to do that.

        • garetz on 04/05/2019 - 21:02
          +2

          Why would you need the permission of the photographer if you own the copyright, doesnt make sense.

          • whooah1979 on 04/05/2019 - 21:05
            -2

            @garetz: The law doesn't have make sense.

            • garetz on 04/05/2019 - 21:06

              @whooah1979: The copywrite law is quoted above, you seem to be in favor of ignoring the law, your opinion of how it should be doesnt reflect how it actually is.

              • whooah1979 on 04/05/2019 - 21:31
                +1

                @garetz: I'm not making this up.

                http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/cons…

                (5) Subject to the last preceding subsection, where:

                (a) a person makes, for valuable consideration, an agreement with another person for the taking of a photograph for a private or domestic purpose, the painting or drawing of a portrait or the making of an engraving by the other person; and

                (b) the work is made in pursuance of the agreement;

                the first-mentioned person is the owner of any copyright subsisting in the work by virtue of this Part, but, if at the time the agreement was made that person made known, expressly or by implication, to the author of the work the purpose for which the work was required, the author is entitled to restrain the doing, otherwise than for that purpose, of any act comprised in the copyright in the work.

          • NancyCat on 04/05/2019 - 21:18
            +2

            @garetz: OP only has the copyright for photographs created for 'domestic or private use'. 'Normal' usage of wedding photos i.e. sharing between families/friends, on Facebook, Instagram etc. The Photos can't be used for commercial purposes.

            • dcep on 05/05/2019 - 00:57
              -3

              @NancyCat: That is not what the extract says.

              It says "OP owns the copyright if the photographs are created for 'domestic or private use'.

              Don't twist the word. Read again.

              • OnAWhimTwo on 05/05/2019 - 18:28
                +3

                @dcep: Nancycat is not twisting the words They are pretty clear. "photographs created for 'domestic or private use'" this states the USE is private. You therefore do not own the copyright for commercial use. even if its your own company.

                If they wanted to use them for a commercial use they should state that up front so the photographer can make any adjustment need
                to their rates or renegotiate after the fact.

                The reason this is done (and I have researched it) is the "artistic work" is that of the photographer.

                • dcep on 05/05/2019 - 19:07

                  @OnAWhimTwo: Read the extract again. Maybe read another 10 times. See if you get it.

                  You're applying the condition to the wrong context. Same with Nancy & whooah.

                  Can't be that hard to understand 2 sentences. It's pretty clear and straight-forward if you read it without bias.

                  Copyright in commissioned photographs is owned by the photographer with the exception of photographs created for 'domestic or private use' (such as wedding photos or family portraits). Copyright in these photographs will be owned by the person who commissioned the photo unless an agreement is signed to the contrary.

            • ozbjunkie on 05/05/2019 - 19:32

              @NancyCat: They are created for domestic or private use. That is the purpose behind their creation. Hence the op owns the rights.

              If the op wants to use these photos as part of their business, they own the rights.

              At least, that's a literal reading of the extract quoted above.

              • NancyCat on 06/05/2019 - 18:08

                @ozbjunkie:

                They are created for domestic or private use. That is the purpose behind their creation. Hence the op owns the rights.

                Yes, that's 100% correct.

                If the op wants to use these photos as part of their business, they own the rights.

                No, I don't think so, as 'business' is public (on a website that anyone can see), not 'domestic', not 'private'.

                • ozbjunkie on 06/05/2019 - 18:48
                  -1

                  @NancyCat: Once you own the rights, you can do whatever you like with them.

                  You are the rights holder.

                  Ie you can put then on a business website.

                  At least that would be a literal reading of that text.

                  There may be OTHER rights of the photographer, but those are not quoted in the text above.

        • trustnoone on 04/05/2019 - 21:27
          +4

          I kind of see the point you're trying to make (and I'm not a lawyer) but I think it might work a bit differently. If photographer owned the copyright, you're correct, they would need consent from the artist for it to be on their commercial business.

          But in this case, the photographer never owned the photos, because as per the law, the photos were commissioned for domestic use and thus the ownership went to OP. Once OP has ownership of it, they can do what they like, essentially give themselves consent to use the photots for their commercial business.

          If however the photos were taken for commercial use in the first place then that would be a different story and you'd be correct that they were created for commercial use and thus OP never had ownership. But I really have to imagine these were originally commissioned for domestic use first because you know, its a wedding, and I doubt OP got married just to be able to take commercial photos.

          • whooah1979 on 04/05/2019 - 21:41
            +1

            @trustnoone: The commissioned work was for a private wedding. OP wants to use the commissioned work for commercial use which may not have been covered the agreement.

            • garetz on 04/05/2019 - 21:52
              +2

              @whooah1979: I do not think you understand what you think you understand. If you own the copywrite, you can do whatever you want with it, commercially or otherwise.

            • trustnoone on 04/05/2019 - 21:58
              +4

              @whooah1979: Haha exactly which is wherein lies the problem, OP commissioned for work for a private wedding, created for domestic use, that gave OP full ownership of the photos, not "personal ownership" not "ownership for private use" or "ownership with certain circumstances" but ownership of the full photots.

              In saying that, one very important point I didn't initially read was this:

              Photographers may have a "right of restraint" when a photograph is commissioned and they do not own copyright. Right of restraint is the right to prevent the photograph being used for purposes other than which it was commissioned.

              So while OP may own the the photograph, the photographer does have the 'right of restraint', that does not mean they photographer gets any ownership but it does mean that if it is used for commercial purposes the photographer could get it removed I imagine.

              • garetz on 05/05/2019 - 00:21

                @trustnoone: The right of restraint is a morale right not a legal right, it simply means you cannot alter the art, not that you cannot use the art how you wish to use it commercially or domestically. Anyway it all comes down to what was signed, i would get further legal clarification.

          • OnAWhimTwo on 05/05/2019 - 18:33

            @trustnoone: That's not how copyright works. You cannot change the terms of the copyright after the fact.

            If they were created for private use, they cannot be used for public use anytime in the future unless renegotiated.

      • nith265 on 06/05/2019 - 17:24
        +3

        That Melbourne Uni link is a bit of a red herring – its an reworded internal resource and isnt really the source to be quoting.

        This info sheet from copyright.org.au is a better source (though is still reworded from the Act…) and it even gives an exact example of OP’s situation
        https://www.copyright.org.au/ACC_Prod/ACC/Information_Sheets…

        From page 3 of the above doc in the context of photos that were taken for “private or domestic purposes” :

        Even though the client is the owner of copyright, the photographer can rely on his/her right of restraint to negotiate further payment for uses that were not contemplated at the outset.

  • Randxyz123 on 04/05/2019 - 20:48
    +3

    If the photographer was good and you have an event management business why not partner with them? If you send more work their way for events you run, they probably would be ok with you using them for your site.

    Also if you put a link to the photographer's instagram or website under the photo crediting them with it then there should be no issue.

  • holoz0r on 04/05/2019 - 20:59
    +4

    Photographers can choose to charge extra to allow you to own the copyright to the images. Take a look at the Australian Arts Law Page for some examples of how the law interacts with creatives, and in particular, photographers, by this custom search

  • JimmyF on 04/05/2019 - 22:00

    What does your contract say?

  • Almost Banned on 04/05/2019 - 22:41
    +1

    Copyright is generally held by the author of the works - unless they were created in the course of employment or commission - in which case it is the employer or commissioner which owns the rights.
    This can be modified by agreement - and the right can be split in various ways. So it is possible to alienate the copyright for specific, limited, purposes and retain it for others.
    In this case the answer does indeed lie in the agreement you entered into with the photographer. If that agreement only provides that you have commissioned the taking of photographs for payment and does not otherwise reserve ownership of those pictures you have a good claim to be the copyright owner for all purposes.
    Frankly I think it is a scam that photographers get paid to take your photos - then think they can continue to keep copyright in them. There should be mandatory clarity in wedding photo pricing so you get one price where they keep copyright and you have to 'buy' your own pictures, and another price where you own the work product entirely.

  • sancrumble on 05/05/2019 - 00:39

    Here it is-
    As per ACC Photographers & Copyright Information sheet, "If you were commissioned to take photos for a wedding, or any other private or domestic use, your client will own copyright, unless you reached an agreement to the contrary. This means that your client, as the copyright owner, has the right to copy the photos whether from negatives, prints or proofs."
    So the pics should be yours to use if no agreement signed.

  • yoonibear on 05/05/2019 - 06:37

    Had a look through our photographers contract and our one states "copyright in all photographs is owned by xxxx (photographer)" then "xxxx (photographer) would seek permission to use images produced for commercial reasons (advertising/marketing ..etc..)

    I'm assuming that the photographer owns the copyright but if they were to use it for advertising/marketing they'll need our permission - but I guess that just comes down to what your contract says

  • munecito on 05/05/2019 - 08:09

    Check your contract.

  • wallet72 on 05/05/2019 - 10:25

    my wife used to be a professional photographer and she got a lot of business because she said up front 'all photos are the property of the client, however <business name> reserves the right to use selected images for promotional purposes if required'. You'd be surprised how common it is for the client to worry about this, it used to be a really big deal.

  • bamzero on 05/05/2019 - 12:16

    Depends what you agreed upon with the photographer.

    Some will hand over all rights, some will essentially sell you a license to use for personal use etc but this must be agreed upon beforehand.

    If you're unsure, best to check with the photographer.

    Ultimately you're not trying to resell the images and the exposure could only benefit the photographer. They may just request credit be given.

  • [Deactivated] on 05/05/2019 - 15:19
    +3

    Full time wedding photographer here. I've been shooting 10 years and have about 500 weddings under my belt.

    There's some confusion about copyright and usage rights.
    Under the law if no contract is signed, with any domestic photography (weddings, family photos) the person who commissioned the shoot owns the photos. However, most photographers assign copyright to themselves so they're able to edit/crop/enhance the photos they took for you. They also need copyright because after the event they need to backup all files so they aren't lost in the event of hard drive failure. 90% of regular people out there don't have proper backup procedures and we don't want to be blamed for the loss of their photos when their house burns down, their computer gets stolen, or they lose the USB drive we give them.

    Our business model also relies on using past weddings to promote ourselves. Without copyright we aren't able to do that.

    Now we also allow the couple/family to print, copy and enlarge the photos we give them. That's usage rights. What we don't allow is to let anyone put an instagram filter over it, or overlay it with any sort of text that would alter the aesthetic of the shot. You hired us to document your day as seen through our eyes. We will take the photos that tell the story as interpreted through our eyes and using our artistic vision. Otherwise you might as well hire any guy off the street to just press a button.

    Also because the contract is between two parties (yourself as a domestic client and us the photographers) usage of the photos can only be within the domestic context and no other. That means personal use, print for frames around the home, share with family and friends, etc.

    Once you want to use it for your business, you're introducing a third entity (the business). The photographer has no agreement with the business and thus has no right to use the photos. Yes you are owner of the business but you are not the business. Within the context of the law, the business is still considered a separate entity. That's why when a business goes bankrupt, the CEO's personal finances are not affected.

    Your photographer's suggestion to credit him/her is pretty generous. Usually commercial photography attracts commercial rates. So I reckon take the offer. And to answer your last question, no copyright isn't transferable. The agreement is between you and the photographer, no one else. You wouldn't be happy if your photographer gave your wedding images to a random stranger to promote their services would you?

    • OnAWhimTwo on 05/05/2019 - 18:44
      -2

      "They also need copyright because after the event they need to backup all files so they aren't lost in the event of hard drive failure. 90% of regular people out there don't have proper backup procedures and we don't want to be blamed for the loss of their photos when their house burns down, their computer gets stolen, or they lose the USB drive we give them."

      Did your lawyer right this BS?

      Oh we have to own the copyright for your own good. What a load of crap!

      • gyrex on 06/05/2019 - 09:46

        @onawhimtwo I wish ozbargain had an IQ filter.

    • Vodafail on 05/05/2019 - 23:53
      +1

      @jimmyt - thank you for your input, good to hear from someone who is in the industry. I think that will be the route I will be taking and credit them for the photos on my website.

    • gyrex on 06/05/2019 - 09:46
      +1

      Best response here, thanks mate!

    • poochi on 13/05/2019 - 15:46

      There's so much wrong here.

      You don't need copyright to legally backup photographs if the copyright holder gives you permission to do so. You think my grandma needs copyright when I send her pictures of her great-grandchild?

      You just want the copyright so you can use those photos however you want without having to ask for permission.

      I can stomach photographers making people sign a contract to handover copyright, just don't pretend it's for a reason other than financial self-interest

      • [Deactivated] on 14/05/2019 - 11:18

        Are you a photographer?
        Do you produce any sort of intellectual property for a living?
        What I don't understand is some people's hatred towards ownership of IP.
        If you made your own lawnmower and your neighbour borrowed it and never returned it you would be pissed off too.
        And yes we do need copyright to backup. Copyright i.e. right to copy.
        Facebook and Instagram both own the copyright to any photos you post online too. Because they need to store the photos on their servers.
        Unless you're an IP lawyer or deal with these sort of stuff on a daily basis, I'm sorry but you're speaking from ignorance.

  • HeWhoKnows on 05/05/2019 - 16:36
    -1

    So OP says….

    "Logically I find this quite unique, that we paid for a service and now we have to credit and given them free advertising on our website. It still doesn't sit right with me, but I think its the letter of the law and the agreement we signed."

    OP you need to open your eyes to the real world.

    This is every day stuff.

    The professional took the photos hence the professional gets all the credit.
    Not you or anyone else.
    If you put some of them on a web page then YES, you MUST credit the photographer to save anyone thinking you or a friend took them.
    If you led anyone to believe that, it could be considered as FRAUD!

    You are using them royalty free so stop complaining!

    Also others might want to know who took the photos anyway.

    Instead I'd suggest you negotiate a small commission for any successful referals

    • Vodafail on 05/05/2019 - 23:52

      I only displayed my point of view, and I have confirmed that I will adhere to the letter of the law. No need to get so rude with your response and attack people.

      I am using them royalty free because I paid for the service and that is what the contract states.

      I am not complaining, just seeking advice and laying out the facts.

  • OnAWhimTwo on 05/05/2019 - 18:42

    Yes you own the photographs and you own the copyright.

    This means simply the photographer cannot use those same photo's for their own purpose. They cannot use them say to advertise their own business without your prior approval.

    However. Neither can you. You are only granted copyright for private and personal use.

    While you think this may be odd consider this…

    I get married and YOU the photographer take some beautiful pictures. I then use those pictures in my own photography website implying that I am the photographer.

    Would you as the real photographer be p|ssed because someone else was taking credit for your ARTISTIC endeavour?

    You would and you 100% have the right of restraint.

    • [Deactivated] on 06/05/2019 - 05:42

      Edit to add: this is in reply to your previous comment that what I said was BS

      Are you a photographer or someone who deals in intellectual property? Because I am and I deal with it on a daily basis. Why do you think Facebook and Instagram own whatever photos you post on their social media sites? It's so they're allowed to use your photos to populate their social feed. Without assigning copyright to them, you can't upload anything to their servers and they can't keep or backup any of it on their servers.
      I have every photo I've ever taken since the start of my career 10 years ago backed up on hard drives. I never use them for anything other than the promotion of my business, and the client is free to request them at any time because that is part of my service for them, but for it to work I need access and that means copyright. The sole act of backing up is copying i.e. the right to copy or copyright.

  • Zachary on 15/05/2019 - 17:32

    …..should have taken those pics urself and save urself all this hassle…..

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