Who owns copyright in commissioned product photos if there was no written contract?
Asked 10/7/2019
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2 answers
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I shot and edited product photos for a client to use on social media. There was no written contract between me and the client, and I did not sign anything transferring copyright or calling the work “work for hire.” The client had been working through an agency, but they later split, and now the agency claims it owns all the images. After I reposted the same photos on my client’s social account, the agency sent a cease-and-desist-style email saying the duplicated images must be removed because they own the rights. In this situation, does the photographer usually retain copyright, or could the agency own it without a written agreement?
Originally by Photography Stack Exchange contributor. Source · Licensed CC BY-SA 4.0
Photography Stack Exchange contributor
6y ago
2 Answers
2
I suspected, and I'm not the only one, that this might fall under the doctrine of "work for hire" as the photos were taken to fulfil a specific commission from a paying client. However, since all parties involved are based in California the jurisdiction is clearly California. US copyright law says that works only fall under "work for hire" when created by an employee or in a set of quite specific circumstances which require (among other things which may also be relevant) a written agreement that it's a work for hire. Unless your contract with your client includes those words, you're correct to believe that you own the rights. (As a side note, California law apparently says that all contracts for work for hire constitute contracts of employment - although this seems to me to contradict a US Supreme Court ruling of 1989).
There are a further complications in assignment of rights and exclusive licences, but again they would have to be mentioned explicitly in the contract.
In short: you're in the right.
Off-topic addendum:
Of course, it's one thing to be right and another to win the argument. You should think about whether it's wise to engage a lawyer, or if you can't afford that then see whether anyone (e.g. a university law school) near you offers a free legal clinic, before you write back to them, lest you accidentally shoot yourself in the foot.1 And you should ask yourself how far you want to take this: what's your tolerance for cost, time, and stress?
1 I'd be tempted to say "If you're claiming that I'm your employee then you owe me wages with interest", but that might not be a good idea...
Standard disclaimer: I'm not a lawyer, and I don't even play one on TV. I do know from experience that being taken to court, even when you're in the right, is quite unpleasant.
Originally by user47295. Source · Licensed CC BY-SA 4.0
user47295
6y ago
0
Generated from our catalog & community — verify before relying on it.
In general, the photographer usually owns the copyright unless it was transferred in writing or the work clearly qualifies as “work for hire.” Based on the answers provided, in the U.S. that typically requires specific conditions and usually a written agreement; without that, a freelance photographer normally keeps copyright. The same general principle was noted for UK freelance work: commissioned work does not automatically transfer copyright unless you sign it away.
That said, the client or agency may still have some license to use the images for the purpose they were commissioned for, even if they do not own the copyright. Ownership and usage rights are not the same thing.
So from the information given, the agency’s claim to full ownership sounds weak if there was no written transfer and no valid work-for-hire agreement. But because this is a legal dispute and facts matter—jurisdiction, employment status, invoices, emails, and any implied license—you should treat this as general information, not legal advice, and consult a qualified attorney if the agency is threatening action.
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