What is copyright and who owns it?
Copyright is a right of authorship and a property right. It's also a Human Right under Article 27(2) of the Universal Declaration of Human Rights. It is an incentive for creativity and creates a balance between users and creators and between the public interest and freedom of access. It's what's called a monopolistic right as it's exclusive to the owner. It's a form of intellectual property (also known as 'IP') and it allows creators to make a living from what they produce. Authors of original works own the copyright in their work and this is enshrined in law – in the UK, it is wrapped up in a piece of legislation titled the Copyright, Designs and Patents Act 1988 (or 'CDPA 88' for short). More information on copyright ownership can be found at www.ipo.gov.uk.
The photographer (as the author of the image) owns the copyright in their photographs. In the same way that musicians control who can reproduce their music, photographers control who can reproduce their images.
Shops, hairdressers and pubs etc all need licences to play music - photographers issue licences to enable people to reproduce their images. This is why it is important that you discuss your commission and fully brief your photographer (or their agent), including details about where and how you would like to use the images.
The photographer will give you a licence that will reflect the agreed use - ie. on a website, in a brochure, etc., the length of time you wish to use the images for, and the geographical territories in which the images will be shown. The use of these images will be exclusive to you, unless agreed otherwise. This means that the photographer will not be able to allow any third-party to use the images you are using during the time they are licensed for your use, and possibly beyond, depending on what has been agreed.
How do I find the right photographer?
Not every professional photographer can work in every genre of photography. A photographer who takes family portraits and weddings is not necessarily the one to shoot a picture of your Board of Directors.
Your first step is to have a look at our Accredited Photographer members' work, which can be viewed by clicking here. All members of the AOP have been vetted by their peers through a review panel to verify their professionalism and standard of image quality. Professional photographers all have websites, and AOP member sites can be accessed through this portal to show you their full range of images. Their websites are an ideal way to view their style, expertise, and clients they have worked for.
Professional photographers will also most likely have a portfolio to further showcase their work. This may be their main representation and shows their skills and experience in a proven and varied package. We advise you ask the photographer to bring in their portfolio so you can see the quality of their images in printed form as well as meeting them. A good relationship with the photographer is very important for both you and your business.
Should the photographer you choose have an agent, you will usually negotiate with them as the ‘go-between’ – they are the photographer’s representative and will deal with the business side of the commission. They are paid a fee by the photographer and will not incur you any extra expense.
Why should I use a professional photographer?
As digital cameras grow in sophistication it has become easier for everyone to get pleasing results for apparently little cost. However, using an non-professional to take an important picture can be a false economy. The impact a professionally-crafted image has on a client’s market is far stronger than that of a quickly grabbed snap from a digital camera. Professional photography will sell your product or your company far more effectively.
Photographers are not just technicians. A professional understands how to capture images that are right for a client’s business and convey the message required. Their experience enables them to obtain successful results in difficult and challenging situations. It is as important for the photographer as it is you that the images are right for your business and convey the message you require. As a proportion of your media/print budget, the cost of getting original imagery as good as it can be, is tiny.
Importantly, and more so these days, a professional photographer will hold all the necessary insurances, e.g., public liability, professional indemnity, employers' liability etc., which are vital for your peace of mind and the health and safety of all on the shoot. They will also have contacts for third-party professionals, if required, for models, stylists, props, set-building or location-finding.
When commissioning a photographer the images they produce will be exclusive to you. Images you buy from a photographic library are not exclusive to you, unless you negotiate an exclusive (and therefore expensive) deal with them. This could mean other businesses, which may be similar to yours with similar products or services, will be able to licence the same image and use it for their own products or company.
Negotiating exclusivity with a library is often more expensive than commissioning a photographer, and you will still be unaware if the image has been previously licenced by a possible competitor.
A commissioned image is original and bespoke and accurately reflects your company and products or services, no-one else's.
How much will it cost me?
There are no set rates in photography. The majority of professional photographers will charge a day-rate, although some may charge by the half-day or by the hour.
The type of commission and specialisation will generally dictate the fee but photographers will also take into account a number of other factors to determine the cost, including:
- The media the work is to be used on initially, for example on packaging, point-of-sale, annual reports, billboards, national press, or social media and online (there are more categories of media, but this serves to give you an idea)
- The length of time the work is to be used by you, for example, 1, 2 or 5 years.
- The territory or territories (i.e., the geographical areas) in which the work is to be used
If you have a tight budget, discuss this with the photographer (or their agent) who can advise if it is realistic and what you can expect for your proposed budget. Be aware that if other professionals (i.e., models, stylists, set-builders etc., are needed, these will be charged on top of the photographer’s fee, as will some element of digital processing/production or film & processing and other expenses. The photographer will estimate these extra costs for you initially so you know exactly where your budget is going and allow for any necessary changes before the shoot begins. Be sure to get any estimates or quotations in writing so everyone is clear on where they stand.
There is a misconception that if the images are shot digitally, rather than on film, that this is a cheaper way of producing images. This is not true. Some photographers will still shoot on film but deliver the images in a digital form whilst the majority will shoot and deliver digitally. Both methods incur costs.
- In order to produce high-quality digital images, a lot of time and skill is necessary before, during and after the shoot to ensure the final images are of the highest quality before presentation to the client, and ultimately for reproduction.
- A professional photographer has to invest heavily in the best equipment. This equipment needs to be replaced/upgraded frequently to ensure it meets the standards required to produce professional results.
For more information about digital costs, click here.
I don't understand some of the terms used - what do they mean?
If you only commission or buy photography services occassionally, you may be unfamiliar with some of the language and terminology used. Here is glossary of terms you are likely to come across in the buying or commissioning process:
Above the Line (ATL): this phrase is a little aged these days but is still used and refers to mass media marketing/advertising such as TV, national press advertising, poster campaigns, point-of-sale (or point-of-purchase), online and what's called 'ambient' media (which refers to things like bus-sides, railway/bus stations, pertrol station forecourts, taxi side panels, basically anywhere that advertising can be placed that is in the general public domain). People are starting to refer to either 'Through the Line' or 'Content & Channel' as a more contemporary way of describing the media structure today.
All rights: this is a phrase that can cause confusion as it can mean different things to different people. Some people take this to mean that the rights to use the photograph(s) are global, all media and in perpetuity. Others sometimes take this phrase to mean that the actual copyright in the photograph(s) is to be transferred from the creator/photographer to the client.
Below the Line (BTL): this phrase is the partner to 'Above the Line' and describes all forms of targeted advertising, so things like direct mail, brochures, PR, intranet, marketing aids and smaller regional advertising that is directed to specific audiences. Like with 'ATL', this phrase is starting to be replaced with 'Through the Line' or 'Content & Channel'.
BUR (Base Usage rate): this is a figure that the photographer, or you as a client, can use to work out additional costs for either re-licensing some work, or adding extra usage onto an existing licence-to-use. The figure is not set in stone, it may vary from job to job even, and it is never usually lower than the photographer's day rate, and it's not brought into discussion on every job - this latter point depends more on the type of work and the photographer. Some photographers will place the figure at approximately the level were they to do the shoot again from scratch. Discussing the BUR in advance is always useful as it gives both parties a good idea of any future level of fees, should things need to change. You can also set a BUR figure on a per-image basis, giving you even more flexibility and scope in predicting future costs.
Buy-out: as with 'all rights', this phrase can mean different things to different people so it is worth discussing with the photographer or anyone else involved, what you (or they) mean by this. It is often used by clients wishing to 'pay once, use forever'. As with 'all rights', you should never assume that this is a copyright assignment.
Commission: either as a verb, 'to buy' photography services from a photographer, or as a noun, the actual job itself (the commission).
Copyright assignment: Copyright is a form of intellectual property (or 'IP') and is a right of ownership vested automatically in the creator of a piece of creative work, for example, in these FAQs, the photographer. Photographers do not usually assign or transfer their copyright to their clients or if they do, it is by way of a fee and a written agreement that confirms the transfer and new ownership of the IP. Clients (buyers and commissioners) do not need to take copyright off the photographer in order to use the photographs - that can be done more than adequately through a Licence to Use which covers the client's needs. We do not advocate seeking copyright assignments from the photographer(s) you commission.
Exclusive: in the context of buying or commissioning photography, this means that only you, as the client, will be using the photograph(s) - the photographer will not be able to do anything further with them until the usage rights granted to you have expired. Note that unless you agree otherwise, the photographer will be able to use the photograph(s) for their own publicity, promotion and marketing (such as on their own commercial website(s)).
In perpetuity: this is a fancy way of saying 'forever'.
Licence to Use: this is a document or a set of terms that describe the 'usage' or 'usage rights' that you have been granted. Some photographers will issue this as a separate document to the invoice, others will include it on the invoice itself. It should set out the variables of 'time', 'territory' and 'media' as well as any other points, such as a request by the photographer to be credited. This sums up your contract with the photographer and should be read in conjunction with the agreed terms of business.
Media: this term refers to the actual platforms and outlets that the photograph(s) will visible on or through. For example, 'online', 'adshel poster', '48-sheet billboard', 'point-of-sale/point-of purchase' are all different types of media.
Moral rights: these are a less well-known group of rights conferred on creators of original work and part of the Copyright, Designs and Patents Act 1988. There are four rights that might be of interest to you as a client. These are:
- The right to be identified as the author of the work - Sometimes known as the 'attribution right' (or less commonly, the 'paternity right'), this means that as long as the photographer has requested this in writing, a credit must be given next to the photograph(s). There are exceptions to this though, such as when the photograph(s) is/are used for the purpose of reporting current events, or is/are published in a newspaper, magazine or similar periodical or collective reference work, such as an encyclopedia. Industry practice tends to mean that the opposite is the reality, with credits being given to photojournalists, but not to photographers shooting for advertising.
- The right to object to derogatory treatment of the work (i.e., the photograph(s)) - Sometimes known as the 'integrity right', this means that a photographer has the right to object to visual treatment of their work that reflects poorly on them. The same exceptions listed above apply here but the photographer does not have to 'assert' this right in writing, unlike 1. above.
- The right not to have work falsely attributed to someone as its creator - Known as the 'false attribution right', this right applies to anyone who has found their name attached to someone else's photograph(s). There are no exceptions to this right, unlike 1. and 2. above.
- The right of the commissioner to prevent publication - this is not a creator's right, but the client's. In certain circumstances, namely social and domestic work, or private commissions (such as weddings, for example), the person who commissions the photographer can ask for the resulting photograph(s) not to be published anywhere. This sometimes catches wedding photographers out, if they fail to discuss this with their client and subsequently publish the photographs online without having secured permission to do so.
Rights-managed: this means that the photograph(s) is/are being licensed for use, through a combination of the three variables of 'time', 'territory' and 'media'.
Royalty-free: this means that the photograph(s) are being sold for use for a flat fee, usually variable by size of digital file supplied. This is still a form of 'licence' but much, much broader in its scope than you might find through 'rights-managed' work. Royalty-free licences tend to be available in different price-bands, depending on what rights are being granted. Many picture libraries and stock photography suppliers work in this way. Rights granted are usually non-exclusive though.
Territory: in the context of usage, this means the geographical areas that the photograph(s) in question will be viewable in. For example, we might talk about 'UK-only', or 'pan-European' or 'Worldwide' as types of territory.
Time: when discussing time in connection with usage, this means the length of time that a photograph will be used for. You might only need to use a photography for one year, for example, or you may wish to have an extended period of time in which you can use the photograph(s) such as ten years.
Usage/Usage rights: this means the uses that you wish to put the image to, so it includes variables such as time, territory and media. These are explained in more detail below. When you have been given or granted usage rights, you are allowed to use the photograph(s) in line with what has been negotiated and agreed between you and the photographer.
If I've paid for the film, processing or digital files why can't I keep, and use all the work?
Just as if you buy a copy of a book, a song, computer software or a DVD of a film, making that purchase doesn’t give you the right to make copies of it, or broadcast it to the public. That right remains with the copyright owner. It is exactly the same with photographs.
There is a difference between the medium (eg transparency/ negative/digital file) and the content (the image) but one is of no use without the other. If you were to claim ownership of the medium, this doesn’t mean you automatically own its content. The image in the file or transparency is the intellectual property of the photographer and without a licence to use, it would be illegal to reproduce it.
Raw files are never usually supplied by the photographer as the photographer was chosen for their skill and vision and the post-production/output work is part of that skill. You will be supplied with images that are of the best quality for the intended uses and ready to go.
Assuming the images are to be exclusive to you, by law, the photographer cannot licence them to another client whilst you have an exclusive licence to use them. Note though that the photographer may use them for their own self-promotion, unless explicitly agreed otherwise.
Why don't I get the right to use the images wherever I want?
When a client insists on unlimited use of the images they have commissioned, this can be both an unnecessary and costly affair.
An unlimited licence includes every possible media use including billboards, videos, TV, CDs, t-shirts etc., for worldwide use for the term of copyright duration (70 years after the death of the photographer).
This type of unrestricted licence is unnecessary, it is highly unlikely that the vast extent of uses it includes would ever be taken up. If professional models are needed for the shoot, their fees will also reflect this unlimited use of the images. The price for this type of licence would be enormous and you would be paying for use you do not need.
A calculator has been produced to show the standard trade practice of calculating uses needed over and above the original licence:
What if I want to use it for things I don't have a licence for?
Should the commissioned work exceed your expectations and you want to extend the use of the images, you can easily negotiate this with the photographer (or their agent). Suggested guidelines as to how photographers charge for extra usage have been produced in tandem with commissioners of photography and are available in a calculator format. All photographers will negotiate extra use, whether they use our calculator or have a rate-card of their own. By looking at the calculator you can work out what the standard practice would be, by inserting the Base Usage Rate, also known as the BUR, (sometimes the day-rate is used) that you have been charged.
Go to our Usage Calculator, which calculates a guideline fee using industry standards that photographers, agents, buyers and commissioners use to determe the cost of new licenses.
What are 'exceptions' to copyright and why are they important?
Copyright law is essentially a set of rules that allow the person who owns the copyright (known as the rights holder) control over that piece of creative work. Usually you need permisison from the person that owns the copyright in order to use that piece of work (and let's say it is a photograph, after all, we are the Association of Photographers!)
Exceptions to copyright are a way of providing balance between the rights of creators and the needs and wants of users. These exceptions are set out in the Copyright, Designs & Patents Act 1988 (as well as being reflected in the relevant retained EU legislation, post-Brext) and are as follows:
- If you incidentally include another work in a photograph, video or sound recording that you make, for example because it is in the background, then you may not need permission from the rights owner. However, you must be sure that including it or not makes no material difference to your work, otherwise it is not incidental, but deliberate.
- You can draw or take a photo or video of buildings, sculptures or other works of artistic craftsmanship that are permanently displayed in a public place or in premises open to the public. This is sometimes called freedom of panorama.
- Copying something when you are either teaching, or being taught, setting or taking an exam, may be permitted under what is termed, fair dealing*. Licences authorising the copying of broadcast content, books, journals, newspapers, images, music, website content and some other documents by educational institutions enables copying by those institutions beyond the limitations of fair dealing.
- You may copy text or data to which you have lawful access (such as through a subscription) in order to use automated systems to analyse it for non-commercial research only. This is known as text and data mining or 'TDM' for short.
- If you are reporting current events then you can use any work apart from a photograph. You can use any kind of work to criticise or review either that work, another work or a performance. In both cases your use must be fair* and must include sufficient acknowledgement.
- You can record any television or radio broadcast in domestic premises so that you can watch or listen at a more convenient time. This is usually known as time-shifting. This exception only applies for private and domestic use.
- You can quote from a work (including a photograph, which would mean using a section of it), and use that element in a caricature, parody or pastiche or the original. These uses must follow fair dealing requirements*.
- There are also special exceptions for libraries, archives, public administration, reverse-engineering or analysing a computer program, preparing works for people with impaired vision or hearing, and more.
* Although fairness is not defined in law, most exceptions specifically require your use to be fair to the copyright owner, (known as fair dealing). This includes acting as a fair-minded and honest person would, not doing something the owner could reasonably expect to license or otherwise exploit commercially, and only using a reasonable amount of the work.
Promoting the owner or the work, or being non-commercial, would not in themselves be considered fair. Using a whole work is also unlikely to be fair.
Fair dealing is not a general exception to copyright, and only applies in specific circumstances as outlined above.
Note: What is referred to as ‘Fair Use’, which applies in some countries such as the USA, has similarities with the UK’s regime of fair dealing but is more general, often contentious and the two should not be confused.