Copyright arises in a photograph automatically, at the moment it is taken, provided the photograph has its own original character and bears the personal stamp of its maker. No registration, no notice and no formality is required. The photographer is the author and holds the rights, and that remains so when the photograph is published, shared or reproduced by others.
Who holds the copyright?
The photographer, as a rule. Two exceptions matter. Where a photograph is made by an employee in the performance of his duties, the employer is deemed to be the author and holds the rights. And where a work is published as the work of a legal person without naming a natural person as author, that legal person is regarded as the author.
A freelance photographer is not covered by the employment exception. A client who commissions photographs does not acquire the copyright by paying for them; the client acquires what the contract gives it, and if the contract is silent, that is usually no more than a limited right of use.
Transfer and licensing
Copyright can be transferred, but only by a deed – a written instrument – and the transfer covers only what the deed states or necessarily follows from it. A general clause purporting to transfer all rights in everything is read restrictively.
Most arrangements are better handled as licences: a defined right of use, for a defined purpose, medium, territory and period. Where a client wants to use images in ways not originally contemplated – a campaign, a different medium, a resale – that is a new question, and the licence is where the answer should already be.
Moral rights
Alongside the economic rights, the photographer retains moral rights, which cannot be transferred. They include the right to be named as the maker and the right to oppose distortion or mutilation of the work that would harm the maker’s reputation. Cropping a photograph, adding text over it or altering its colour can engage those rights even where the user holds a valid licence.
The people in the picture
Copyright is not the only right involved. A person depicted has portrait rights: where a photograph was commissioned by them, publication requires their consent; where it was not, they can oppose publication if they have a reasonable interest in doing so. Commercial exploitation of the image of someone with marketable popularity is a separate and well-established ground.
So a photographer may hold the copyright and still not be free to publish, and a business with a licence from the photographer may still need consent from the people shown. Both questions have to be answered before an image is used in advertising.
Unauthorised use
Where a photograph is used without permission, the maker can require the use to cease, claim damages, and require the image to be removed from the medium in which it appeared. Damages are commonly calculated on the licence fee that would have been payable, and an uplift is often claimed for the absence of a name credit. Published tariff lists are evidence of what is customary, not a binding scale, and courts assess what is reasonable in the case before them.
Practical steps matter more than the legal theory: secure evidence of the use with dated screenshots before writing, and identify who is actually publishing – the platform, the advertiser or the agency – because a demand sent to the wrong party achieves nothing.
Advice
We advise photographers and users of images on licences, on commissioning agreements, and on infringement, and we act in both directions. Please contact Law & More.
