Real Estate Photography image rights

Started 6 months ago | Discussions thread
Michael Fryd
Michael Fryd Forum Pro • Posts: 15,645
Re: Real Estate Photography image rights
4

ampimagedotcom wrote:

Michael Fryd wrote:

ampimagedotcom wrote:

.. some sort of 'Work Made for Hire' agreement ...

Strangely, in the USA...

Unless the photographer was an employee, or the work fell into one of the nine enumerated categories, it is not a "Work Made for Hire," even if there was a "Work Made for Hire" agreement.

So what do 'you guys' call it, if someone agrees to pay you for your time & expenses to do the work, instead of or in exchange for the the Rights to use your images afterwards?

In the context of US Copyright Law, “Work Made for Hire” has a specific meaning.  It refers to the special case where the original copyright owner is not the creator of the work, but the entity that hired the photographer.   In terms of how long the work is protected, it matters whether or not it was a Work Made for Hire.

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In the general case, in the USA, when a client hires a photographer to take images, it does not fall into the “Work Made for Hire” category.  It simply is a client hiring a photographer to take photos.

Under US law, this does not mean the client owns the copyright.  The photographer would typically be the copyright owner.

Prior to digital, a wedding client might only receive physical prints.  They would not have the right to reproduce those images.

In today’s world, the client might want to receive digital images, rather than physical prints. In that case they would typically receive a license to make copies (prints) of the images for certain uses.  For instance, a wedding photographer might retain copyright, and only allow the client to make prints or copies for personal use.  The wedding client might not have the right to reproduce the images for commercial use (such as on a website to sell wedding dresses, or an advertisement to promote the venue).

A commercial client likely wants the right to reproduce the images for commercial purposes.  Thus, they may insist on a copyright license that allows their intended use.

Alternatively, the photographer can transfer the copyright ownership to the client.  In the USA, a transfer of copyright must be executed in a written document.

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In the USA, paying someone to create an image, does not always mean that the you own the copyright to the image, or to even make copies of an image.

Similarly, paying someone to model, does not always mean that you have the right to use those images for whatever you want.

A well educated commercial client may insist on both a copyright license/transfer from the photographer, and a model release from the model.  These documents may grant broad rights for the client to do whatever they want with the image for perpetuity,  or it may be limited in scope to certain uses during certain time periods.

There is no guarantee that the scope of the two documents (model release and copyright license) will be the same.

There are exceptions.  There is a set of situations where a copyright license is not needed, and a different set of situations where a model release is not needed.  There is some overlap between these two sets.

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The separation of Intellectual Property rights from physical objects, is not limited to photography.  If you buy a Blu-Ray disc of a movie, you own that particular physical disk, but you do not own the copyright to the movie.  You may not make copies of that disc to provide to others.

When you buy a piece of art, you may be getting only the physical piece, and not the copyright.  Spend $20K to buy a painting from an artist, and you may own only the painting, the artist may retain the copyright.  Even though it is “your painting”, you may not have the right to make copies of that painting (for instance you may not have the right to make and sell postcards featuring that painting.

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