I’d like to share an experience I had with Wedding Photography and Copyright. This is crucial information, so please read on.
What happened to me:
I co-shot a wedding in Simi Valley with a lead photographer who will, of course, remain anonymous. It had been about eight years since I last second-shot a wedding, but it was a last minute referral, I had nothing booked and the wedding sounded intriguing. I met the lead shooter, we agreed on a rate and we co-shot the wedding the following Saturday. I had agreed to shoot on his cards to save time downloading images at the end of the night, assuming he would transfer the RAW files to me the next day, as this is exactly what I do for my second shooters on late night shoots to save time. However, when I asked him when he’d send my images at the end of the night, he seemed put off by the question. He insisted that the images I took were “his intellectual property” and that he “never agreed to release them.”
I explained to him that I owned the rights to my work for the reasons listed below, at which point he called me “unprofessional” and proceeded to drive off with my work. Eventually, I had an attorney send him a demand letter, to which he responded by claiming that he couldn’t release the images because his clients wanted their “intimate moments to remain private.” This was after he had posted three images from the wedding on his Instagram account, which has over 9,000 followers.
I ultimately sued him for the images. Two days before we were due to appear in court, he released the work. Was it worth the trouble? Absolutely.
Copyright law and your rights:
Under US Copyright law, if you press the shutter button, regardless of whose gear you’re using (this includes memory cards), you automatically become the owner of the image. The only exception is if the work you’re creating is a work-for-hire. A photograph is considered a work-for-hire in at least one of the following situations:
1. If you’re an employee of a company and you’re photographing within the scope of your employment.
2. If there’s a written agreement between you and the person who hired you specifying that the body of photographs is to be considered a work-for-hire. (See 17 U.S.C. Section 101.)
To be clear, a verbal agreement is not sufficient. Additionally, even if the lead photographer hands you a check without a written agreement, this does not constitute a legal transfer of copyright. In this scenario, you’re simply being paid for your time, not the copyright to your images.
Takeaways for associate and second shooters:
First, when it comes to wedding photography and copyright, know your rights (see above). Second, never be afraid to demand access to your own work. Unless you sign a document indicating the work you are producing is work made for hire, you automatically own the copyright, regardless of whose gear you're using. Finally, if you are ever asked to sign a contract giving up your copyright, make sure there is at least a sub-license that at least gives you the right to promote your own work on your website. After all, isn't that why we second shoot in the first place?
Takeaways for business owners:
First, be transparent with your associate and second shooters. If it's your policy to retain all copyright and image access, that is entirely up to you, but make sure you communicate exactly what your policy is before shooting commences. Do not wait util the end of the night. Put everything in a written work-for-hire agreement and make sure the second shooter knows exactly what they are signing.
Second, if you’re going to retain copyright, consider adding a sub-license that allows your second shooters to promote their work.
Finally, if you absolutely must forbid your second and associate shoters from sharing their work due to privacy concerns of your client, be prepared to compensate them accordingly. Photographers seek out second shooting rolls mainly because they are trying to improve their portfolios. It's a huge incentive.
Bottom line, if you get to use your own work to promote your business, your second shooter should have the same rights.