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Here's the scenario:

I work for a company that does some home improvement work.

An architect designed the house, we did the work. I found pictures of that work online, contacted the architect and his response was that he had hired a photographer to take those pictures.

I contacted the photographer and he wants to sell me the pictures — for a lot of money I must add.

I originally wanted to post the pictures on my website, with a link to the photographer's web page, obviously crediting him, and the architect for the work as well.

But now I have a couple of questions:

  1. Does he own the copyright to those pictures even if they are of my work?

  2. Can I use the pictures, even if he disagrees, if I credit him for the work?

  3. Can I get in trouble for any of it?

  4. Can he get in trouble for using pictures of my work?

I really thought it would be nice to link to his page displaying his work and ours, and since the pictures are about five years old, I didn't think he would want to charge so much.

I've emailed the US Copyright office, but I didn't get a convincing answer about the whole scenario:

"Generally speaking, the copyright ownership rights in a photograph belong to the photographer."

mattdm
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4 Answers4

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Generally speaking, the US Copyright Office's terse answer is a complete reply: the copyright of the photo belongs to the photographer. The owner of the property may also have some rights which could limit the photographer's commercial use of the material (including, for example, selling it to you).

I know one old photo seems like a little thing and it seems like the photographer could be more flexible, but consider that that's how he is making his living, and it's not really an easy way to stay afloat. The pricing reflects that. And, take a moment to consider the fact that you want this photograph demonstrates that it does have value.

If you need photographs of your work, you could hire your own photographer, or do it yourself (which, for great results, is harder than it looks). If that seems expensive or troublesome, that gives you an idea of what the existing photo might be worth. If, on the other hand, that'd actually be easier and cheaper than the offered price, then you can just solve the problem that way.

In general when approaching a deal with someone, you need to consider your best alternative to negotiation. If you can't get this picture for what you want, what will you do instead? How much will that cost you, and will it provide the same benefits? This will help you both know what you can offer, and give some perspective into what is reasonable. If it turns out that the photographer's idea of reasonable is still far from your alternate options, walk away happy.

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mattdm
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  • I do understand he makes a living of of that, and i knew i would take some criticism for it. I really approached him nicely, as my way of thinking was that the fact is that he made money of our work directly (which i must add, it was a brand new home from the ground up), and i wouldn't really be doing the same per se. I would only display them as a portfolio, and not sell them as he did. It seems at least a bit unfair. Thank you for your help! =] greatly appreciated. –  Nov 20 '12 at 18:33
  • @Guisasso — I understand. Unfortunately from your point of view, the legal rights really do stand with the photographer, and if you approach with a claim of some other moral rights, that could have gotten the conversation off on the wrong foot. It might be worthwhile to go back and say "look, I understand now that you own the copyright, but can we make a deal for these reasons...." – mattdm Nov 20 '12 at 18:36
  • I am really stunned that apparently our company has no rights over the images. I do understand that i would not be able to sell them, or to credit them as my work, and neither would i want that. But not being able to display my work because i would do so through somebody else's eyes seems very harsh to me. Nevertheless, thank very much for your answers, i'll try to make contact again and see how far i get. –  Nov 20 '12 at 19:14
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    @Guisasso — you could also work to change intellectual property laws in the U.S., as there are many, many things in the law which don't really feel in line with people's common understanding of how it ought to be. But that's kind of an uphill battle. – mattdm Nov 20 '12 at 19:37
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    @guisasso: The photos are photos of your work, but someone else carried out the creative act of making an image of it, which makes that image their work. Look at it in terms of your own business: If I wanted you to install a new roof on my house, would you do it at no charge if I was willing to let you stencil your name somewhere on one of the fascia boards, where I get to choose the location? – Blrfl Nov 20 '12 at 23:06
  • The point is, he already sold the photos. He already made his money on it. If nothing else it would be noble / courteous of him to share the pictures of my work that he took, with me. I'm not selling them, i would also like to credit him for it. I just think if nothing else, if i really have no rights over this, it's malpractice on his part. –  Nov 21 '12 at 03:51
  • @Guisasso If an author wrote a book describing your work, and sold one copy, would you call it "malpractice" if he didn't let you put another copy (or, say, just a chapter) on your web site? – mattdm Nov 21 '12 at 11:36
  • @mattdm No, and quite frankly, i don't see how the two are related. Comparisons of this type won't help the conversation. A book takes a lot longer to create, and it's not guaranteed to sell even a single copy. Although i would definitely appreciate a free book, what the photographer in case does, or doesn't, apparently it's all up to him. What i would do on his case, would definitely be different though. –  Nov 21 '12 at 12:25
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    @guisasso: Business doesn't run on nobleness or courtesy. The photographer probably feels that if you're going to use his work as a tool to generate additional work (and, by extension, revenue) for yourself, he should get something for it. Credit is a nice gesture, but the value of that exposure may not stack up to the value of selling you the rights to use the image. If he already has a thriving business, giving his work away reduces the value of what he's already done and the potential value of anything he does in the future. – Blrfl Nov 21 '12 at 12:34
  • @Guisasso: okay, say it's a magazine article. It's a related comparison because the law here is exactly the same. (Literally, not just by analogy.) Again, remember that your interest in wanting that image rather than just creating a new one demonstrates its continued, actual value. – mattdm Nov 21 '12 at 12:35
  • @Blrfl I agree with you, i definitely do. But the same way i could generate revenue from his work, he has from mine already. That's the way i'm looking at it. –  Nov 21 '12 at 12:39
  • @mattdm It is a beautiful picture, and as i said before, i don't discredit him for it. Now my interest was to display his work (my work through his lenses) crediting him for it. I don't see how that could be hurting him. He's certainly not crediting me for my work on his pictures. Point is, i believe it's wrong for me to have to pay for that. And as is said, i would've acted differently. This is a 4 year old picture in which he has made his share on it already. That being said, just as a matter of principle, we are photographing that ourselves. –  Nov 21 '12 at 12:45
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    @guisasso Many people believe (with good evidence, even) that sharing mp3 files for free actually helps the musicians. And many musicians agree. But, the law as it stands is on the side of those who don't want to do so. (Again, not really an analogy, since it's the same law.) If you can convince the photographer that sharing the photo on your web site would be beneficial or harmless, cool. But legally, you have to "sell" that idea to the other guy. – mattdm Nov 21 '12 at 14:09
  • @mattdm Well, but then in reference to your other post, if we were to compare, a radio station pays and artist, or label for the rights to display their work. So there's where i feel the difference. I didn't get compensated, and neither did i want to. I just feel i should be able to display the photographs crediting him since they show my work. Now, again, i don't disagree with you, and i also agree that sharing an mp3 is a good practice. But, It's like me being an artist, that didn't get paid by a satellite radio station to have my music played, and yet, i have to pay to listen to the station –  Nov 21 '12 at 14:35
  • @mattdm continuing... It's not fair. But, it's ok, i just wanted to know about my rights, i do feel it's unfair, but if it's the law, it's the law. It's not something i'm gonna lose any sleep over, if it was and i felt it was hurting my image, i would do something about it, like suggesting changes to the law. –  Nov 21 '12 at 14:37
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    @guisasso So anyway, if you need advice on how to take that photograph yourself, we can help with that too. :) – mattdm Nov 21 '12 at 14:38
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    @guisasso While you may feel that it is not fair to you, anyone who has had their work used to promoite somebody else's business without remuneration or permission would feel much more hard done by. You keep asking for consideration and compensation of your work while not acknowledging that others have a valid reason for compensation of their work. You're the one who is being unfair. –  Nov 22 '12 at 08:24
  • @ClaraOnager You are completely wrong in your comment. Neither do i want remuneration for his work, or would i want him not to be compensated for his work, which he has already by the way, he has sold the pictures to somebody else. –  Nov 22 '12 at 14:45
  • Whilst maybe this architect is pushing pricing too far in your belief, I do think he is in his right in owning the copyright on the photo. In addition, if he really architected the building, it sounds a bit biased to me to say that it is you that has done the work. – Fer Nov 27 '12 at 21:26
  • So what about the house owner? What are his rights? So if I hire an architect to build my house, he has all rights in the world to take photos of it and publish online? Can the person who paid for the house prevent this from happening? – Sudarshan Kadam Nov 28 '12 at 04:18
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    @theSuda No, if you own the property you have many possibilities to make your rules for photography apply. Depending on local law (i.e. your country) anyone including the architect may be able to take picture from the street or other publicly accessible ground. The other way around, the architect owns the copyright to the house-design and therefore you may not publish photographs of this (much like you can't photograph a painting). But again there are a few details I omitted and it depends on your location. – Unapiedra Mar 04 '13 at 11:01
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IANAL so you should ask one. The answer in your situation is likely to be very complex and greatly depends on where you are located and the particular contracts between the parties.

ANYTHING BELOW THIS LINE IS NOT LEGAL ADVICE, NOR DOES IT REPLACE ANY

Broadly speaking, in most parts of the world, including Canada since November 7th, the copyright of the image belongs to the photographer by default. Since that photographer was a work for hire from the architect, had contract with the architect which may or may not have transferred the copyright to the architect. Before November 7th, this was the default in Canada. So, usually yes, he owns the copyright.

You cannot rightfully use his pictures if he disagrees. If you do, the photographer is likely to sue you and win damages. This is something many photographers I know have done often.

Owning the copyright to a photo is not sufficient to do anything with the image. For people or property, the image in the photo belongs to its person or owner. Normally, photographers obtain permission to use the image for commercial by getting a model or property-release signed.

Unless you also own the home which your company fixed, the owner is NOT you either. Meaning if the photographer needed a release to use the image for commercial purposes, he had to obtain permission for the owner.

Itai
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    IANAL either, but let's not forget that the architect may hold copyright in the structure if it's sufficiently innovative (something you can usually count on with a Gehry or Libeskind type), adding another layer of permissions you might have to license. Normally, a builder or contractor's rights are limited to rights of interference, like mechanic's liens, which prevent other people from exercising their rights until the bills are paid; the work itself is generally not copyrightable and "for hire" to boot. –  Nov 20 '12 at 18:09
  • So, since this is very confusing, who should i contact to learn about my rights? I'm not disputing his work or how well done it was, but he directly beneficiated from our work, which i really don't care about, i don't see why i could not beneficiate from his. BTW, thanks for the answer everybody! =] –  Nov 20 '12 at 18:36
  • A lawyer specializing in copyright is best. He will ask a bunch of questions and you have to provide all the contracts involved or as many as you can. And yes, this is a truly complicated one. Every situation I dealt with was much simpler. – Itai Nov 20 '12 at 18:40
  • @guisasso: IANAL either, but I'm not sure that I agree with your assertion that he directly benefited from your work. He was hired by the architect for his photography skills to take photographs; what he was contracted by the architect to take photos of seems irrelevant. That's his job, he takes photos; you haven't provided details of why his photos are much more valuable than any of his other professional photos just because they're of your work. – Conor Boyd Nov 20 '12 at 20:30
  • I see your point, and also agree with your view. But this doesn't change the fact that he displays our work through his photographs, such as in a portfolio in his website. He only photographs that type of stuff, and our work is also unique. So although i agree with you, he also benefited from our work through selling pictures, and displaying them in his portfolio. I only said "home improvement" because i didn't want to get into details. I also think it's very poor judgement from him to try to sell the pictures from something done so long ago to the person who did it. He'll only lose from this –  Nov 20 '12 at 20:41
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    @StanRogers: I believe copyright for a building would only apply if you were going to try to build a copy of the building, not take a picture of it. – whatsisname Nov 21 '12 at 00:42
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    @guisasso: the world doesn't owe you anything. You were hired to build something, that's what you did. What other people do with the end result, you have no control over. If you built a coffee shop, would you expect everyone that comes in and hangs out to pay you, in addition to the coffee shop owner? – whatsisname Nov 21 '12 at 00:44
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    @guisasso Regarding He'll only lose from this - Well, no. You'll only lose from this if you try to sneak around the copyrights, because any photographer successfully making money knows their rights and how to protect them, and most likely has a legal budget bigger than you can imagine. – Anindo Ghosh Nov 21 '12 at 01:44
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    @whatsisname -- not even close to true. A photograph would be a derivative work. You're thinking of something closer to a patent than a copyright. –  Nov 21 '12 at 01:46
  • @whatsisname and anindo ghosh - Whoah, you guys are taking this the wrong way. I don't take anything away from his work, which was great, and so was ours. All i'm saying is he already made his money on the photographs and sharing would be a good practice and would create a good relationship that would benefit the both of us. Don't take sides based on whether you're a photographer or not. I'm being fair in my comments and so should you guys. The fact of the matter is that he made money displaying my work, and i believe i should be able to display it as well. That was the question. –  Nov 21 '12 at 03:45
  • And, as an addition, good practice could mean that instead of my company hiring another photographer to take pictures of our work this Friday, he could be the one. That's a bond that could be formed but never will be. But anyway, that wasn't the question. –  Nov 21 '12 at 04:03
  • @AnindoGhosh if i had any intention in doing that, i wouldn't come here or email the office of copyright. So, at least read the question. –  Nov 21 '12 at 12:30
  • @guisasso Evidently I did read the question, but I also read your rather amusing "He'll only lose from this" comment. :-) – Anindo Ghosh Nov 21 '12 at 12:43
  • @AnindoGhosh I'm glad i made you laugh. =] –  Nov 21 '12 at 12:46
  • @guisasso Yup, two thumbs up for that. :-D – Anindo Ghosh Nov 21 '12 at 12:48
  • Yeah, the photographer already got paid to take the picture(s). The builder also already got paid (probably a LOT more) to build what he was hired to build. Now tell me again why the photographer owes the builder anything? – Michael C Oct 27 '20 at 04:11
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Since the photographer owns the copyright, the solution is simple: hire your own photographer to shoot the construction site again, and have your contract with the photographer spell out that you get copies of the photos.

For a more complex answer, you will have to pay a real lawyer. IANAL, etc.

Pat Farrell
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I'm also not a lawyer, but here's my $0.002

There are two related things happening here, first, the copyright.

  1. Yes, he does own the copyright to the photos
  2. No, you can't just use them without a licensing agreement, even if you give credit
  3. You won't go to jail, but in cases of infringement and you take it to court, you'll have to pay damages, legal fees, (your lawyer, his lawyer AND all court costs), you still won't be able to use the images AND you'll have a court judgement on record against you (this can really screw up your credit, regardless of circumstances)
  4. Maybe.

No. 4 leads to the second part, which is less clear. He might not be able to use the work, depending on how you've protected it as IP. Images of some buildings/structures, like the Eiffel Tower are protected from commercial use, but most are not.

My advice is to NOT use the photos until you have a licensing agreement in place. As to preventing him from using the photos, you'd better talk to a good IP lawyer if you're serious.

The cheapest and most obvious answer is to hire someone to take photos and negotiate the licensing with them up front.

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