“I saw you taking photos, can we get copies?”
Even when I’m not being hired to take photos, I often bring a camera to events that I’m attending, to take photos for my own reasons — including testing out a new technique or a piece of equipment. More often than not, the event organizers notice me taking photos and approach me afterwards to ask if I’d be willing to share them. Especially if the event is hosted by a not-for-profit organization, I usually accede to that request. However, I do set some healthy boundaries.
First of all, I draw a clear distinction between photos I take as part of a paid assignment and photos I take on my own behalf. When on assignment, I make sure I have a contract in force and that I’m working off a clear commission with well-established parameters, including a set fee. But when shooting for myself, I’m not under pressure to create beautiful photos — in fact, most may come out looking terrible because I’m experimenting with something. However, when photos do come out well, I have no problem sharing them with relevant people or groups if they represent a good cause, and I rarely charge a fee.
But as I mentioned above, I do not simply hand over a set of photos and hope for the best. Photography is my business, and I need to protect that business from all kinds of potential harm, even if it’s unintended. Here are a few hypothetical examples of actual harm that someone I share my photos with might unwittingly cause:
John decides that, while my edits look nice, they would look even nicer if they were run through John’s favorite, albeit hideous, Instagram filter.
Mary shares my download link with a third party organization she thinks would be interested, which then in turn posts my photos on their social media. Before I know it my intellectual property is being posted in the wild by complete strangers who have no idea who I am because no one bothered to list a photo credit, and are unaware of important restrictions placed on the use of my photos.
April is Mary’s co-worker and is in charge of social media. After posting the photos, she decides that one photo in particular would make a great t-shirt because it shows a cute dog (I like to take pictures of dogs). She sends the photo to the marketing guy, who orders 1,000 t-shirts. Not only am I not getting a licensing fee from the sale of merchandise, but more importantly I did not secure a property release from the dog’s owner, who eventually discovers that Buster’s furry mug is on a bunch of t-shirts. The dog owner sues the event organizer, the t-shirt printer, and the photographer.
Bill is unaware that when I shared copies of my photos with him, I did not magically transfer my copyright also, and he decides to post the photos on Unsplash.
The first case may not seem that big a deal, but it harms me because people might think I don’t know how to edit photos, and a bad reputation can negatively affect my photography business. The latter cases are more severe because they can have serious legal repercussions.
Licensing and Terms of Use
The way to prevent such situations, of course, is to have a licensing agreement in place. Whether or not I’m paid to shoot, I never release any photos without one. In the case of a commissioned assignment, the client has signed a licensing agreement up front. But what about people who, at the end of an event I’m attending, ask me for copies of any photos I’ve taken? I don’t really want to reply with, “Sure, but first I’m gonna need you to sign a 7-page legal document and get it back to me.” By the time they’ve figured out who in their organization should sign the agreement and how to scan and email it back to me, valuable time has passed during which they can’t post photos of their event to social media. Even electronic signatures can be a hassle because they require knowing the actual signer’s email address.
So instead of demanding a signed agreement before releasing photos, I came up with a better solution: terms of use. Everyone is familiar with that concept; we’re confronted with terms and conditions every time we install a software package or use a new online service. Whether or not we actually read them (and, let’s face it, most of us don’t), they are legally binding as soon as we start using the software or service. So when sharing photos — which I usually do via Dropbox or Google Drive — I also place a Photography License and Terms of Use document on the same cloud share and draw attention to it in an email. It is only three pages long, yet it covers a wide range of topics, such as who owns the copyright (me), the exact type of license I’m granting, what the limitations of that license are (including a list of explicit restrictions on use), and what may happen if these restrictions are violated. It also mentions that downloading any of my photos constitutes acceptance of all of the terms and conditions.
・・・
Just because you’re a nice person who is happy to share some informal photos with the organizer of an event you attended doesn’t mean you should forget about the potential financial or legal harm that may result from giving away your stuff without any guidelines on how it should be used (and, more importantly, how it may not be used). Even if you are not in the photography business, you should always have a clear set of rules spelled out in writing, and make sure people are aware of them.
