Who Owns Photos Created by an Independent Contractor?

We hired the photographer, so why can't we use the images in our other books?


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?


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

When a person creates a work in a fixed medium, 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 creator.

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 legal definition of a “work for hire” is spelled out in the Copyright Act of 1976.

Imagine an employee at an amusement park whose job is to take pictures of families before they go onto a roller coaster. The photographs produced by that photographer do not belong to the photographer; rather, they belong to her employer, the amusement park. This would be a classic example of a “work for hire.”

The photography job you've described probably does not fit this description, however. A freelance photographer doing creative shots is likely to want to retain the copyright. The extent of his rights is entirely subject to the written agreement between you.

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. He might also want to be able to use his photographs on his website or marketing materials, to show off his skill.

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 strategy 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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