We wish that photography was nothing more than just picking a great lens, grabbing your favorite camera, and snapping away! But if you want to turn your photography into a career, you’ll be struck with a variety of legal woes. Navigating this can be a bit tedious, so we’ve condensed the information to the 10 most important legalities that all photographers need to know!
Disclaimer: I am not an attorney nor a lawyer. The information presented in this article is not intended to act as your legal bible. This is solely reference material. Please consult a lawyer for any legal matters. Any referenced laws are based on the United States legal system. The information can vary by country, provinces, and districts.
Photographers Should Understand Law. Period.
Ignorance to the law is not an excuse to break the law, as they say. No matter what you do in life, you should be well versed on the rules.
Being a photographer is no different, so photographers must understand their laws and rights (as well as what they cannot do). This helps keep the photographer out of hot water and also protects the photographer’s images from being improperly used.
Legalities All Photographers Need to Know
Here are the legalities that all photographers need to be well versed on. Laws can differ between counties, states, and countries. But certain laws remain fairly universal, such as intellectual property and release forms.
1. Copyright and Intellectual Property
As a photographer, you likely hear the terms ‘copyright’ and ‘intellectual property’ often. In layman terms, these both mean the same thing. Copyright is a law that tells you and the world that you own the piece of art that you create.
Copyright allows you to reproduce, sell, and do whatever you wish with it. This prevents everyone else from using your image and/or profiting from your photograph without your consent.
You don’t need to register each photography you create for it to have a copyright. A form of copyright is automatically applied at the moment of creation. This copyright lasts your entire lifespan and for some time after your death.
That being said, if you find that someone had stolen your photograph and claimed it as their own- it is wise to have your photos officially copyrighted.
A common source of tension between clients and photographers is who owns an image after it is taken. The client essentially buys the photographs in the shoot but the photographer takes the images, so who owns the content?
According to copyright law, the photographer does. Unless they transfer the rights to the client through rights transferring, the image is theirs. The client may only use the image with the consent of the photographer. This is regardless of whether a payment was made or not.
2. Private Property versus Public Property
The next law we need to cover is where you can legally take pictures.
This boils down to a little concept called “expectation of privacy”. Expectation of privacy is a term that states whether or not the privacy protections apply to them or not. Among these privacy protections, the one that is relevant to releases is allowing you to tell someone not to take your picture.
Anyone in a public place, such as a sidewalk or a street, has no legal expectation of privacy.
Anyone in a private place has a legal (and reasonable) expectation of privacy.
If you are on private property, such as a home, you have the right to prevent someone from taking a photograph if they are standing on private land. The moment they leave private land and step onto public land, you forfeit your right to police their photography. This works in reverse to, you can capture images of someone on public property but on private property, you need consent from the property owner.
These private versus public property legalities are often a big question from street photographers. Let’s clear this up for you street ‘togs:
For street photography, yes, you can photograph anyone you wish on public property. You can even sell these photographs without a release form. The subject has no right to privacy on public property.
However… this isn’t a free-for-all pass. You can sell these photographs as fine art, to a newspaper, or other news outlet. You cannot use these images to promote yourself if the subject is recognisable. The law also says that you cannot commercially use these images in any derogatory, defamatory, or slanderous way.
3. Property Release Form
Property Release Forms tie hand-in-hand with shooting on private property.
To quickly explain what a release form is, it’s a document between the photographer and the client, subject, owner of something in a photograph. Release forms secure legal permission to publish images of people and property.
Publishing refers to posting online in a public forum (such as social media or your website), print medium, television medium, and everything in between.
Back to Property Releases. If you want to publish photos of the property that does not belong to you, it’s essential to get the owner of said property to sign a release document.
However, this is specific to whether or not the property is recognizable beyond a reasonable doubt.
Many likely think of physical locations when it comes to property release forms. However, the law in the United States also considers animals to be property.
If you want to commercially use photographs of a recognizable dog, cat, or other pet, you will need a property release form. Same goes for a car, garden, and anything else considered property.
4. Model Release Form
A model release form states that the model of the photograph consents to having their likeness used by the photographer. After photographing a person, the photographer can use the resulting photograph as outlined in the document.
If you wish to use the portraits you took of a human subject, such as posting online, use them to advertise your business, in a portfolio, or print the images for commercial use, etc, your model must sign a model release form.
A model release form protects you against future lawsuits your subject might file against you. This can mean anything from claims like invasion of privacy, defamation of character, and so on.
Likewise, depending on the terms set forth in the release, the photo release form protects the model as well.
5. Commercial Use
Commercial use represents the purpose and usage of a photograph. What happens to the image after it is taken, essentially.
Simply stated, commercial use is anything created for profit. Most people think of commercial use in terms of selling something, such as a photography print. Yes, this is the most basic form of commercial use. But it is far more than that (especially in this modern age of the internet).
Anything used with the intention of profit is commercial use (such as marketing and advertising).
If you post a photograph of someone on your Instagram and use that photograph to promote your photography service, that is commercial use.
Yes, you are not making a direct profit from that image alone. But you are using that image to promote something that will provide you with money at some point.
There are instances in which something that would appear to be commercial use is actually not commercial use at all. If you sell an image to a newspaper, that is not legally commercial use. This is considered Fair Use.
6. Fair Use
Fair Use can make photo rights a wee bit more confusing. According to the doctrine of fair use which is found in Section 107 of the copyright law., certain uses do not require permission. It includes a list of various purposes for which reproduction of a particular work may be considered fair.
Some of these purposes include commentary, news, criticism, comments, teaching, research, etc. Basically, someone is allowed to use your photograph without your consent if they are using it for, say, education or news.
If your client hurts his or herself during a photo shoot- whose fault is this? That’s where liability and liability laws come into play.
As a photographer, you are technically responsible for your subject while they are obtaining your service. As such, if they get injured or you break something of theirs as a direct result of your photo session, you are held responsible for paying their medical bills or losses.
As well as this, liability goes as far as including damages due to alleged failure to provide contracted services or providing them incorrectly.
This is where having liability insurance is very important. Like car insurance and homeowner’s insurance, liability insurance protects you and your photography business from claims your subject may file.
Watermarks are marks on an image that identifies the creator. Watermarks can range from logos to text that are placed on an image. This is usually intended to prevent theft.
Watermarks are, in fact, tied right up with copyright and someone stealing your picture.
Although a watermark will not prevent thieving fully, it has two significant advantages:
Firstly, When your image gets re-posted, people will know that you are the creator.
Secondly, as written in Section 1202 of the U.S. Copyright Act, anyone that removes your watermark to hide the infringement commits a crime. They can face fines anywhere from $2,500 to $25,000.
9. Sharing Photographs on the Internet
The internet opened a whole new can of worms in regards to photography law.
This is because a lot of people falsely believe that whatever they find on the internet is free for them to use. There is a big misunderstanding of social media terms-of-service in regards to the content you post. Social media sharing becomes a bit more of a gray area due to art laws being a bit dated (they haven’t been updated much).
If you are to read the terms of service of websites such as Facebook and Instagram, this is what they tend to mean: By utilizing the service, you are granting a license to the social media site to use your work.You have to do this in order to be able to post your content, because that content is now being hosted on their public platform, therefore they need a license to have that image up on their platform.
By agreeing and posting, you, the photographer would be giving this social media platform a license to use your “content” (i.e. photos) that are posted on or through it. However, we are granting this license to the social media platform- not the users on it. It’s important to note this distinction.
You can post the images on social media and the social media platform has the right to share or display the images. But the users do not have the right to do that with your content.
This means that if you post something, and another user reposts it, that user is in violation of your copyright. Whether you believe this is stealing and infringing on your intellectual property or not is your own decision, and tends to be rooted in intent by the sharer.
10. Having a Legal Business
If you’re making money from your photography, you’re going to need to legally set up a photography business. If you don’t, you’ll have some nasty run-ins with the tax agency. Don’t try to skirt around this one.
Firstly, go ahead and register your business. Registering allows you to pay property taxes (in turn making the agencies happy to leave you alone), have access to liability insurance, and most importantly, grants you a business license (something necessary in order to collect money from your clients).
To legally set up a business, you must first choose a name and register it. Do your research first though! You need to ensure that you’re not violating any Federal or State trademarks, as well as ensuring your name is available.
After choosing a name, you then decide what kind of business entity you will be. You can choose from Sole Proprietor, LLC, C Corp, S corp and Partnership structures. Choose the one that suits your needs the best.
You then make the appropriate tax elections (if applicable), get your sales tax permit, get other appropriate license and permits for your jurisdiction, and finally, you set up your EIN and employer account (if applicable).
Do You Need a Lawyer?
It’s always better to err on the side of caution, especially when it concerns the law. Even looking up relevant laws on the government websites can be a bit tumultuous to read and understand.
It never hurts to have a professional legal representative guiding you through what you can and cannot do, as well as aiding you on your photography endeavor. Best money ever spent can be on a knowledgeable photography lawyer, even if all you need is a consultation.
In conclusion, keep these laws in mind the next time you go out shooting. It’s not a bad idea to have the exact statutes printed out and thrown in your camera bag, you never know when they may come in handy!