Picture this: You’ve spent several hundred dollars on headshots, photos of the exterior and interior of your business, or pictures at a corporate event. Now you want to use those photos in promotional materials or on your website, or at the very least, prevent someone else from using them. Surprisingly, you might not have very much control over how the photos are used, even though you paid for them!
Your ability to control use of the photographs depends on whether or not you own the copyright rights to the photos. A copyright is a bundle of rights created by Congress in Title 17 of the United States Code to protect original works of authorship which exist in some tangible form. A copyright gives the author certain exclusive rights, which arise immediately and automatically at the time the work is created in a fixed form. Whoever owns the copyright rights has the exclusive right to say how and when the photos can be used.
Therefore, unless the photographer is an actual employee of your company (as opposed to an independent contractor), the photographer automatically owns the copyright rights in the photos once they are uploaded, downloaded or developed, since he/she is the one who created the work. If the person who took the photographs is an employee of your company, then the copyright rights are automatically deemed to be owned by the company under the “work for hire” doctrine.
The safest way to protect yourself is to make sure the photographer assigns all of his/her copyright rights to you. The law requires a copyright assignment to be in writing and signed by the copyright owner to be effective. This can be done fairly easily since the language required for the assignment can be made part of the contract between you and the photographer at the onset of the project. If not, the written document can be executed afterwards as well.
It is important to make sure the assignment transfers all rights to use of the photos in any format or media now known or hereinafter devised. For example, if the assignment only transfers the right to use the photos in a company brochure, that assignment might not extend to use on your company’s website or ads published in local media.
The same copyright principles apply to the creation of your website. Even though you paid a developer to create your website, if the developer has not assigned his/her copyright rights to you, you don’t own it. This can be especially troublesome if you want to take action against someone for using text, graphics or photographs taken from your website. If you do not own the copyright in the website, you will not be able to assert those rights.
Most vendors will readily agree to assign over their copyright rights…they are getting paid for their work and typically don’t have any reason to retain the copyrights anyway. But you need to address the issue so you’ll be protected, if and when you need it!
Julie Gregory is a partner at Middleton Reutlinger and practices in the firm’s intellectual property section, concentrating in trademark prosecution, litigation involving trademark infringement and unfair competition and copyright law. You can reach Julie at 502.625.2770 or firstname.lastname@example.org.