There are a lot of misconceptions out there about who is able to do what with photographs. One of the most pervasive ideas is that because you’re in a photo you own it, have “joint copyright”, or our in some other way entitled to use it. To some degree it makes sense: that’s your face in the picture, but sadly it’s just not how things work. So let’s answer the question properly: do you own a photo if you’re in it?
Copyright and Photographs
When it comes to photographs, all these questions revolve around copyright. These are the collection of laws that protect creators of original works from being ripped off wholesale. Copyright is what prevents other websites just taking my articles on this site, How-To Geek, and republishing them elsewhere without our permission.
Whenever someone takes a photo, they’re creating an original work. They can use a multi-thousand dollar DSLR or an iPhone; pushing the shutter button is all that’s necessary. If you’re in the image, nothing changes: the photographer is still creating an original work and thus getting the copyright. It doesn’t matter whether it’s a photo of you or a duck, the photographer owns it. Since the photographer owns the photo, you as the subject don’t have any rights to it.
Let’s use a practical example: you’re at a wedding, and the photographer takes a load of pictures and puts them up on their website. There are full versions for sale, but one of the low resolution previews that would make a great Facebook profile picture. Can you download one and use it?
It doesn’t matter that it’s a lovely photo of you. Publishing the photo on Facebook is violating the photographer’s copyright. They could even sue you. The same is true for any other photos of you floating around. If your friend takes a photo of you, in theory, you should ask their permission before making it your profile picture and especially before printing it to stick on your wall. Now obviously your friend is unlikely to mind, but the underlying laws aren’t changed.
Copyright is also something the photographer can transfer or give up. With a Creative Commons license, the photographer gives other people the right to use their image subject to some specific requirements. For example, some Creative Commons licenses require you to credit the original creator; others require that you release whatever you create with their image under Creative Commons yourself. Photographers can also sell the copyright to their work. This is common if they’re doing “work-for-hire”. Similarly, I don’t own the copyright for the content I create for How-To Geek. The rule, however, is that unless it’s stated that an image is released under Creative Commons or otherwise free for you to use, you should assume it’s copyrighted.
Image Rights and You
While you’re not entitled to use a photo of you that someone else holds the copyright of, they’re also limited in what they can do with it. You might not have rights to the photo, but you do have rights to your likeness and reputation.
The photographer is free to sell prints, publish it on their website, and use it in editorial content (like magazine articles or newspaper stories). What they’re not free to do is use it for commercial purposes—which basically means ads—without your permission. The concern here is that by using your likeness in an ad, it gives the impression you’re endorsing the product or service on offer. If they were allowed to just use your photo to promote anything they wanted, you could find your face on a billboard ad for Viagra or your local chapter of the Aryan Brotherhood.
Now be careful. If you sign a model release form, you’re giving the photographer permission to use the photo for commercial purposes. This means they can sell it through a stock photo website where anyone can buy it, including Pfizer and the Aryan Brotherhood, and use it how they want. This is totally normal if the photographer is paying you to model, but not if you’re paying the photographer.
Copyright is confusing. It’s a really complex area of the law and it doesn’t always work how people think it should. It seems strange that photographers own the photos they take of other people but that’s how it has to work for original works to be commercially viable.
If someone does take a great photo of you that you want printed or to use as a Facebook profile picture, as long as they weren’t paid for the shoot, the chances are they’ll be happy to give you permission to use it. Just ask rather than taking.
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