Who owns photos created by an independent contractor?

Question:

I manage a company that publishes travel books. I'm hiring a freelance photographer to take the pictures for a new book on the Pacific Northwest. Do we have the right to reprint and reuse these pictures in our other books and materials, or do the pictures belong to the photographer?

Answer:

Your right to reuse the pictures depends on your agreement with the photographer.

When an independent contractor creates a work, the copyright in that work -- which gives the owner the sole legal right to copy, distribute, and display that work, among other things -- generally belongs to the contractor.

If, on the other hand, the work falls into the legal category of "work for hire" -- which includes contributions to collective works, translations, appendixes, textbooks, and atlases, among other things -- you'll own the copyright as long as you and the contractor make a written agreement to that effect. The photography job you've described doesn't seem to fit this description, however, which means that the photographer will probably own the copyright to the pictures -- and have the right to prevent you from reprinting them.

However, you and the contractor can agree to change this state of affairs. You can ask the photographer to sign a written agreement that either (1) assigns (transfers) the copyright to you before he begins work on the project (in which case you own all rights), or (2) lets the photographer retain the copyright but licenses specific rights to you (for example, gives you the exclusive right to use the photographs in travel books or to a five-year ownership of all rights). You can also establish a license for limited rights and agree to future rates for other rights (in the event you need to reproduce the photo for other purposes).

Not surprisingly, the photographer will almost always want to retain certain rights -- for example, the right to show the photographs in a retrospective of his work or include the photographs in a forthcoming book of his own. How you divide up these rights is between you and the photographer. The photographer will almost always charge more in exchange for giving up all rights (that is, giving up the copyright).

The important thing to remember is to get your agreement in writing before the project starts. If you don't, it will be difficult to later sort out the rights and the copyright will automatically belong to the person who created the work -- the photographer.

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