Who Owns Your Modeling Photos?

Posted on:30 July 2020


Category:Elytiz, English, Industry, Models, Photographers

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Guide to image rights for models

The fashion industry is relatively small, and most people know each other – at least by reputation if not personally. This means that many low-key projects tend to be done in a very informal and unofficial manner.

Of course nobody would start spending their own money on the production of a major advertising shoot without the client signing-off a legally-binding agreement to cover expenses. But from the level of editorial shoots downwards, it’s quite common just to verbally agree the terms of a shoot and assume that any fees or expenses will be paid out eventually. Thankfully, in most cases they are.

This is particularly true of the type of casual collaborative photo shoots that go on among emerging photographers and early-career models – so-called “new faces.”

In fact, when it comes to test shoots, updates for a model’s book, or social media content, it’s almost unheard of for anyone to mention contracts, purchase orders, or budget approvals.

In short, it’s an industry that runs on word-of-mouth recommendations and a considerable degree of trust. While occasionally somebody will turn out to be unscrupulous, and others will get burned, mostly the system works very well. Hardly surprising really: in such a close knit community, all it takes is one dishonest move to ruin your reputation and effectively end your career for good.

Nonetheless, lack of any formal agreement between a model and a photographer can sometimes lead to misunderstandings or even full-blown arguments. Often these disagreements are caused by differing expectations of what each of the respective parties can, and cannot, do with the images once they’ve been shot. For example, if you’ve paid a photographer to take photos of you, or even if you’ve provided your time for free on a collaboration that was in the clear interests of both parties, surely you can do what you want with the resulting photos?

Unfortunately the answer is not nearly as straightforward as we might hope.

If You Paid for a Photoshoot, Without a Contract, Can You Use the Photos for Any Purpose You Want?

Image rights have always been confusing, and with the internet they’ve only become even more so. Although copyright law has begun to catch up with online sharing habits to an extent, the fact is that most models and photographers in the early stages of their career are unlikely to have easy access to either professional contracts or legal advice. In any case, few people will have much interest in taking that route, especially when it comes to what are mostly just fun and casual shoots that are not making either the photographer or the model particularly rich. At least not yet.

One problem that can often arise is that a photographer may try to force the model to put the photographer’s name on the pictures, or credit them in some other way, even though the model paid the photographer for their work.

As we’ve pointed out elsewhere, in many areas of photography it’s not acceptable to add logos or watermarks directly to a photo. It just doesn’t look classy.

A model’s public image depends not only on the photos they share on social media, but the way in which those photos are presented. Photos with cheap graphics added to them are of no use to a model aiming for the higher levels of the fashion market. And there’s certainly no point in a model paying a photographer to shoot content for them if in the end they can’t use any of it because its ruined by bad graphics that the model had no input in designing.

This doesn’t seem at all fair. Surely if you paid a photographer to take photos of you, you are free not to credit them, as the payment compensates for the lack of credit?

Do advertising campaigns include a credit for the photographer? Rarely. And only when the photographer is so prestigious and well-known that the brand wants to show off about it.

I.e. on the very infrequent occasion that a photographer is credited on a campaign, it’s invariably because the brand has chosen to credit the photographer, not because the photographer expects this as their right. Alternatively, the only other explanation as to why a photographer might be credited on an ad is if they provided their work for free – say for a campaign promoting a charitable cause – and this was agreed on as a condition for accepting the job.

Generally though, part of what a client is paying for when they commission a photographer is the right to use the resulting images as they please, without the obligation to mention the photographer’s name every time they do so.

If a model commissions (and pays for) a photographer to produce promotional images, these photographs are effectively intended to serve as advertising for the model. Not as advertising for the photographer. It seems unreasonable to expect this situation to be different from any other commission, where – as we have just discussed – it would be extremely rare for the photographer to be credited.

It would certainly be considerate to credit the photographer – especially if it’s just a matter of mentioning their username alongside the post, rather than adding an ugly watermark or logo to the image itself. But depending on the context and usage, this isn’t always appropriate.

In any case, to us it just doesn’t feel like there’s a moral obligation to credit a photographer when they have been paid for their services. What exactly did you pay them for if not the right to use the resulting photos as you see fit?

The problem is that what seems ethically correct in this case actually differs somewhat from the opinion of the law.

What Does the Law Say?

The first issue here is that the law tends to vary somewhat between different regions of the world. In any case we’re not in the business of giving out legal advice. However, generally what you’ll find is that a photographer will automatically retain copyright of all images they produce, unless there is a written contract stating otherwise.

This means that, even if you as a model paid the photographer to produce the photos specifically for you, unless it was agreed in writing that copyright of the images will be transferred to you, the photographer still owns copyright. And if you do not own image copyright, then technically you have no right to use those photos whatsoever without the copyright holder’s permission. Yes, even if you’ve paid for them.

Of course, if you hired a photographer to take photos of you, it would seem reasonable to expect that you would automatically be given permission to use the photos you’ve paid for. Otherwise there would have been no point in hiring the photographer in the first place.

On a commercial job such as an advertising campaign, the photographer will normally retain copyright too, but will sign an agreement licensing use of the images to the client. Typically such a license restricts use of the images by the client to:

  • Specified media (say online only; or for billboard, print, and web).
  • A specified period of time (e.g. 1 year, 5 years).
  • Specified regions (e.g. Europe, N. America, Asia-Pacific, Worldwide).

Occasionally a photographer will agree to provide the client with a “total buy-out” of the usage rights, effectively granting use of the images anywhere, in any form, and for eternity. But even in this case, unless agreed otherwise, copyright is retained by the photographer.

It’s important to note, however, that just because a photographer retains copyright of their images, doesn’t mean that the client is obliged to credit the photographer every time that the photos are published: as we’ve already said, advertising campaigns tend not to credit the photographer at all.

What’s the Solution?

Theoretically, the photographer should sign a contract granting you a license to publish the photos. Given that you already paid good money for those photos, this may seem unnecessary. Unfair even. But also bear in mind that, unless the photographer asked you to sign a similar contract granting permission to use your likeness – otherwise known as a model release form – s/he has no right to use your photos for anything either.

Should we insist upon signing a contract for every minor shoot; every test and editorial session? This way it would be totally clear precisely where and how the photographs can be used, by whom, and any obligations there are for crediting the other party when the photos are distributed. Yet this is not a common market practice.

The law would say that, yes, this is indeed the solution. In an industry built on trust, it just doesn’t seem very practical. Aside from anything else, the moment anyone starts talking about contracts for a low-budget shoot, the majority of people would get suspicious. If there’s little or no money involved, why would anyone need a contract in the first place? If one party starts pulling out contracts, it’s only natural that other person may begin to wonder what they are planning – or hiding. This risks undermining the otherwise usually good relationship that exists between photographers and models.

The law is effectively on the photographer’s side. But this is because it is designed to protect the rights of a photographer when faced with big clients, or even people who the photographer doesn’t even know, who may try to use the photographer’s work without their permission.

While protection of photographers’ rights is something we fully support, the law clearly doesn’t take into account certain smaller cases such as the ones we look at here, wherein the photographer has accepted money from a model in return for photographs (but without insisting on the use of a contract) and then tries to limit or control the way in which the model (i.e. a paying client) can or cannot use those photos. Although photographers may have the law on their side in this case, ethically it seems less clear to us.

If a photographer accepts money from a client for providing photographs, but wishes to restrict how the client can use those photos, then we’d argue that the moral responsibility is on the photographer to provide a legal contract clarifying the licensing conditions in writing. Clearly such a contract should be provided to the client (the model) before a shoot takes place, so that the client understands what use they would or would not be permitted to make of any resulting photos before agreeing to commission the shoot or otherwise.

Conversely, if the photographer doesn’t want to, or for some reason cannot, provide such a contract, yet still wishes to accept money for their photography from a client, they should be willing to accept the fact that in such informal circumstances they cannot expect to have the same degree of control over the use of their photos. While the expectancy would be on the client (i.e. the model) not to break the photographer’s trust by using the photos for more obviously commercial and lucrative purposes, the moral onus is just as equally on the photographer not to be unreasonable about allowing a model to make use of photographs that they have commissioned for the specific purpose of promoting their services as a model.

In simple terms, if a photographer accepts money from a model to produce social media content or photos for the model’s book, it seems entirely reasonable to assume that the resulting photographs will be used on social media or in the model’s book, and that sometimes the photographer may not be credited.

In our opinion the exchange of money makes crediting of the photographer entirely optional. While it would of course be polite to do so, sometimes this is just not practical.

It seems to us that this latter argument constitutes a much more commonsensical set of guidelines for conducting a fair, ethical, and realistic working partnership between early-career models and photographers. So although a photographer who feels that they have not been fairly given credit for their work may have every legal right to complain about breach of copyright or issue a takedown notice, we would argue that to do so would be to break the unspoken relationship of trust that exists within the industry.

The problem is that the above argument currently has no legal validity. So instead we feel compelled to appeal to photographers on a level of common sense and simple decency.

A Message to Fellow Photographers

We believe that due credit should be given for a photographer’s talent and hard work. There are already enough people in this industry ripping each other off or trying get work done for free; we certainly have no intention of condoning or promoting this kind of behavior.

But in all seriousness it is unlikely that the primary obstacle stopping you from achieving the success you deserve in your career as a photographer is a few models failing to credit you on Instagram. Sure, you may have missed out on a few clicks through to your account. But if anyone really loves your work that much, they’ll likely get in touch with the model to ask who shot it.

Succeeding as a professional fashion photographer requires a lot of hard work, and that hard work includes creating a network of people who will recommend you for jobs. Nobody recommends egotistical and pedantic photographers who kick up a major fuss over a missing photo credit or two.

We’re not talking about the #nofreephotos hashtag here: an entirely justified complaint. Instead this is about people who have paid for photographs precisely so that they can use them as they need. Sometimes that may mean not crediting you. Either accept this, or perhaps it’s better that you don’t sell your photos to anybody in the first place.

What next? Restaurants insisting that they’ll only sell you take-out if you agree to make a formal declaration to your dinner guests as to the origins of the food before serving them? Or perhaps we should be expected to announce to every passerby in the street the provenance of each item of clothing we’re wearing?

In the real world, you pay for services and items, and they become yours. There’s no obligation to tell the whole world where you got them from.

Sure, there are times when the situation would become less clear-cut. For example, if a model asked you to shoot some photos for their Instagram account, and then went on to become a world-famous musician; using your photos for their album cover and tour posters without paying you any extra fees. Well, yes, you’d have good reason to be upset about this. At the very least, the model should have got back in touch with you to ask about using the photos for commercial purposes – and offered to pay you.

But this would be a very extreme case. Most of the time all you’re really missing out on is a little extra exposure; a few more clicks and likes. In an industry where so much is done on trust, and where photographers and models are effectively in the same boat – not competitors, but instead the one needing the other – it just doesn’t make sense to act like a prima donna over this.

Imagine that the situation were reversed: you paid a model for a test, but later you publish a nice glossy coffee-table book of your work which includes a photo of the model. Most photographers wouldn’t even bother to include the model’s name in the book, never mind pay them for the use of their likeness.

Final Thoughts

In order for the fashion industry to work in the interests of everyone involved, there needs to be a strong degree of trust, flexibility, and understanding. Photographers and models starting out in their careers are in the same boat, and should try to appreciate each other’s needs. Although it’s reasonable that a photographer would want to be credited for a free test whenever possible, usually the photographer agrees to do a test for free because they also need new images for their book, not merely for the extra publicity it might bring. Clearly then, a free test is not a one-sided relationship that only benefits the model. This being the case, it makes sense for photographers to try to be more understanding of models’ needs.

When a shoot has been paid for by the model, we would argue that this removes the moral obligation for the model to credit the photographer each time they use the photos. For sure, providing a credit would be considerate, but realistically it just isn’t always appropriate.

With that said, the law actually takes a different point of view, and if as a model you do not have a usage license from the photographer for your photos, technically you are not allowed to use them anywhere at all, either with or without crediting the photographer. So if you are really concerned about this problem, the only secure solution is to insist that the photographer agrees to provide a usage license before you will confirm the shoot with them

Clearly though, this is just not a very practical solution at this level of the fashion industry. Indeed, if every photographer insisted on following the law to the letter, things would very quickly grind to a halt. Instead some photographers need to better appreciate the professional needs of models and understand that providing a credit is not always possible.

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