31 January 2009


Under the Copyright Act of 1976 and the Berne Convention for the Protection of
Literary and Artistic Works, photographs (like designs and drawings) automatically
receive copyright protection immediately upon their creation. Copyright gives the
creator of an image the exclusive legal right to control how the image is used.
This control is exercised by granting licenses to specific persons for specific
uses. The right to use an image cannot be transferred by anyone without the
written consent of the copyright holder.
Absence of a copyright notice does not mean that an image is free of copyright,
and it does not relieve a prospective user from the responsibility of
obtaining permission from the copyright holder. Altering or removing a copyright
notice can result in liability under the Copyright Act and several other state
and federal statutes. Simply having physical possession of photographs, slides,
prints, transparencies, or digital files does not grant the right to use them.
Practical implications
It’s important that you and your photographer agree on the scope of the license
before the contract is signed and photography has begun. Outline your tentative
plans for using the images, even if they are vague at the moment, and negotiate
for optional future rights at the outset. Should your marketing plans change
mid-course, be sure to discuss them with your photographer.
If you are interested in sharing photographs with third parties who have not
been involved in the commissioned assignment (e.g., members of the design team,
contractors, consultants, product manufacturers, clients, tenants, or magazine
editors), they must understand that any use of the photos requires a written
license agreement from the photographer and payment for usage. If you’ve
received photographs without written permission for their use, do not use them
until you have secured licensing rights directly from the photographer.

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