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Running a Photography Business: THE LEGAL ESSENTIALS

Dec 14, 2012

If you’re a photographer, make sure you understand and protect your creative rights, and get your contracts in order.  

When starting a new photography business, we appreciate that you want to be able to put all your effort into refining your craft, developing your customer base and bringing in the cash. But when the heavens open just in time for the confetti shot and you can’t deliver the images you promised or the client cancels on you at the last minute..?  The last thing you want is a lengthy dispute. 

What rights do I have in my photographs and how do I protect them?  

Copyright is the key intellectual property protecting your creativity as a photographer. A common misconception is that copyright needs to be registered – it doesn’t. Copyright arises automatically once an idea is expressed, therefore once the picture has been taken, copyright exists in that image. As a photograph is an artistic work, copyright in the image lasts for 70 years from the end of the year that the photographer died.  

The downside of not having to register copyright if that there is no central record of it. It’s up to you to show that you were there first and that the copy is based on your work.  Make sure viewers are aware that you own the copyright by using “© [Your name/business name][Date of Creation][All rights reserved]” on all your copyright material and keep records of when you created the work (which your handy digital camera can do for you).  

For the duration of the copyright, the copyright owner can stop others from making copies of a photograph, issuing copies to other people, uploading the image to websites (including Facebook) or adapting the photo in any way – thereby protecting the creativity in the work and allowing only the owner to exploit the image commercially.  

Wait...who is the owner? Well, if you take the photo, in most cases you own the copyright. But watch out! If you take a photo in the ordinary course of your employment, your employer will own the copyright. If you have an assistant photographer on a shoot with you, they own the copyright in the images they take and could refuse to hand them over to you or the client. Far from ideal but don’t worry, there’s a contract for that…   

What contracts do I need and how are they formed?  

Contracts are formed when the three following elements come together:  

  1. One party makes an ‘offer’ and another party accepts it
  2. Both parties intend to be legally bound by the arrangement
  3. There is some form of ‘consideration’ on each side, e.g. the exchange of services for money

  A contract can be formed verbally, but it is far better for all involved to put the contract in writing. Trust me - one’s recollection of a verbal arrangement tends to change when things don’t go as they’d hoped... If all the terms are in writing, there should be far less to argue about!   Contracts are key to protecting your photography business and there are three types you may want to consider putting in place:  

  1. Terms of business for use with your clients
  2. Contracts for selling pictures to third parties, for example to a newspaper or to wedding guests
  3. Contracts with other photographers, for example assistants, or contractors that you work with

What to include in your contract   Your lawyers will be able to advise you on exactly what terms are right for you, but as a minimum you should look to include: the obligations and responsibilities of each party; a copyright licence OR assignment of copyright; details of charges and payment terms; termination/cancellation provisions; the really ‘legal’ bits, such as exclusion of implied warranties, limitations of liability and ‘boilerplate’ clauses. What not to include   False promises - Don’t over commit. If you put it in, you’ve got to do it so don’t fill the contract with a bunch of promises you can’t keep. Sales or marketing information - If your contract states “We take the best wedding photographs in London!” there is a risk that such statements could be held by a court to be legally binding and you could end up having to prove it (now there’s a challenge!)  Don't forget!  Other important considerations for your photography business are:  Permissions – It might be that you need permission to photograph at a particular venue (I shan’t name names but some places can be very fussy!) or if a third party’s trade mark is used in any of your pictures.  If you work with another photographer you’ll need an agreement with them in order to sell any of their pictures.  Data protection and privacy – In your ordinary business dealings you will be collecting data – names, addresses, telephone numbers. Photographs contain personal data too. You should register with the Office of the Information Commissioner and you should also have a privacy policy, setting out what you will and will not do with the data.  

If you need any advice on copyright law or other intellectual property rights, or any assistance with drafting your contracts, privacy policies or any other legal documents please contact 020 7234 0200 or info@waterfront.law