Can a photographer use my wedding photos?

Did you know that few people own their wedding photos?

A question some brides and grooms might not have thought about, let alone asked. You may be thinking, it’s my wedding that’s being photographed, so indeed, I own the wedding photography copyright. Well, it’s not that simple.

It’s a little known fact that most people are shocked to discover.

However, after reading this post, you’ll understand why wedding photos are the most expensive photos of a lifetime that most people don’t own and, more importantly, how you can avoid this common wedding-day failure and hold your wedding day AND your wedding photos.

Entrusting a professional to capture the magical moments that make up your wedding day’s bigger picture is a fantastic idea. No amount of disposable cameras or smartphone shots can compare to the artful images of an expert. That being said, find a photographer you click with and then read the contract.

Contrary to what most soon-to-be-newlyweds may think, the wedding photographer owns the legal copyright to the wedding photos they take. This can be disappointing news since many newlyweds would prefer to do whatever they want with their wedding pictures: upload them to Facebook, make a Flipagram to send to Grandma, or even adjust the colours in Photoshop.

A wedding is such a personal matter. Many automatically assume full ownership of wedding photos belongs to the happy, new couple. They figure the wedding photographer is merely someone paid to render a service and never imagine that, in actuality, ownership belongs solely to the photographer.

It’s a matter of copyright right law and a demanding one at that.

What is Copyright? Anyway?

We’ll keep in short and simple. Copyright is the legal right to own something, specifically the originator. It gives the owner control over the way something is used or distributed. Essentially copyright laws protect photographers against their images being used without their permission. The creator of the work has exclusive legal rights to it for several years.

The type of work protected isn’t limited to photographs. Books, paintings, sculptures, music, films, television, radio broadcasts, and even computer software are all protected. Copyright protects the creative sector and the creators themselves.

Firstly, there is no requirement for registration, nor does a copyright notice be attached to an image.

While the general rule in Australia is that the first owner of the copyright is the creator of a work, with an exception to this being where an employee of a business creates a piece as part of that person’s job, the default position on who owns the copyright in images taken by a photographer in Australia initially depends on whether the photographs are considered to have been commissioned for a commercial or a private purpose.

Under Australian law, copyright owners have the exclusive right to:

  • reproduce the work; 
  • make the work public for the first time; and 
  • communicate the work to the public.

Copyright Owners also have the rights to license the use of their works in return for a “valuable consideration”.

Whilst this most often refers to financial payment, it can also refer to a bartering arrangement where goods and services are exchanged. Unless an exception detailed in the Copyright Act is applicable, other parties (people or companies) will require permission (i.e. a license) to use copyright material in ways reserved as the Copyright owner’s exclusive rights.

One critical distinctive of Australian copyright law is the reservation of moral rights vesting in the creator of a work (the photographer). Moral rights do not depend on whether or not they retain ownership of copyright.

Primarily, moral rights give the creator/photographer the rights to:

  • Be attributed as the creator of their work
  • Take legal action if their work is falsely attributed, and;
  • Take legal action if their work is altered in such a way that is prejudicial to their reputation.

Moral rights cannot be assigned to another entity in the same way as copyright. However, a creator/photographer may waive their moral rights. So who owns the copyright by default? Generally, if photos have been commissioned for a private purpose such as a wedding, the client will retain the pictures’ copyright as a default.

The photographer will also be able to restrain (or prevent) the use of images for a purpose other than which the photographer was contracted. For example, a bride and groom cannot sell the photos for commercial publication without the photographer’s consent.

On the other hand, if a photographer is commissioned to do work for another party on a commercial basis, the photographs’ copyright remains with the photographer. Reproduction of any picture will require the consent of the photographer. Copyright notice or watermark is an excellent way to indicate you are the original copyright owner, but this is not necessary to trigger copyright protection. Remember, to operate as a freelancer in Australia; you must have an Australian Business Number (ABN).

Be aware that if photos are taken in employment, the employer will own the copyright unless there is an agreement otherwise.

A contract should limit what a commissioner can use the photo for and the photographer’s rights as the original copyright owner of the photographs. It is essential to have a lawyer licensed in Australia review any contract before signing.

Using commissioned photos beyond the purposes originally agreed would constitute a breach of the photographer’s copyright. A photographer doing works for or who allows a government (Commonwealth, State or Territory) to be the first publisher should note that the Australian government owns the copyright in the absence of an agreement to the contrary.

It states that if a photographer makes an agreement with another person for the taking of a photograph for a private or domestic purpose, in exchange for “valuable consideration,” and the work is done according to the terms of the agreement. The photographer is the owner of any copyright remaining in the position.

Let’s talk about what needs to be in Australian contracts for a photographer to retain copyright:

  • Make sure that your agreement includes the purpose for which the client intends to use the photographs – it will be on this basis that you can assert your statutory right to restrain the use of the picture for other purposes without a further agreement.
  • Where the client owns the copyright absent an agreement to the contrary, it would be prudent to write the copyright remaining with the photographer into the contract.
  • Failing the reservation of copyright by the photographer being secured, a photographer will need to ensure that there is a license for them to use the images in the promotion and advertising written into the agreement.

Suppose you obtain a photography contract written by a lawyer who is not licensed in Australia. In that case, you will need to have it reviewed by an Australian lawyer who understands the Copyright Act 1968 (Cth) implications and how to ensure that you retain your copyright and can assert your moral rights under the law. Choosing the right wedding photographer in Melbourne to capture every moment on your wedding day. 

Check your contract

Can a photographer use my wedding photos?

This leads us on to the next step. Once you have found the perfect photographer for you, it’s time to learn about your rights and requirements. As we mentioned, your photographer will own the legal copyright to your images unless they give you the rights.

It’s incredibly unusual for photographers to hand over the rights to their images. A photographer owning the copyright is an entirely normal practice and something that you shouldn’t worry about.

If they sell the rights to you, it means they’re unable to use any of the images to promote their business. They are also unable to make any more money on the photographs through advertising. This includes displaying the pictures as representing their work on their website or any other advertising form they choose. Generally, they aren’t readily happy to do this. It can also be very costly!

So, read through your contract and discuss it with your photographer. Remember, they’re an expert when it comes to weddings, and copyright practises, so they should be able to answer any concerning questions you might have.

Wedding Photographer Contracts

Suppose you’re like many couples and wish to copy, reproduce, and manipulate your wedding photos. In that case, you should ask for a copy of your wedding photography contract to see what you agree to concern copyright or other issues. Make sure you do all this before commissioning a wedding photographer.

Typically, wedding photographers use three types of contracts: 1) the photographer does not allow for the reproduction of images without permission; 2) the photographer may grant clients a license to reproduce the photographs or to publish them, or 3) the photographer may include a copyright release that gives the clients full access to the photos to do what they want with the images.

Since not all photographers are concerned about the future use of wedding images, you may be pleasantly surprised by a photographer’s accommodation, even if they’re the copyright owner under federal law.

For example, some wedding photographers give their clients digital negatives or full-resolution images through a USB or file-sharing drive. However, suppose a photographer is going to be fussy about the photographs. In that case, their wedding photo contract will probably state that the photographer owns the copyrights and that permission must be granted for all future use.

But don’t give up too quickly! Even if the contract initially states that the photographer owns the copyright, your photographer may also agree to negotiate the terms of your use of the photographs. Wild Romantic Photography has the best range of services of wedding photography Yarra Valley. Check them out here.

Payments and Possession. Doesn’t that Equal Ownership?

Another matter that makes this issue confusing is possession and payment. Many assume that control of images – having a photo in your wallet or the ‘Photos’ folder on your hard drive – and the price is the same as ownership.

Yet, this is far from the case. With copyright law, the ownership emphasis is always on the original creator of a work. This means, even after payment, a buyer may not own the photos they’ve paid for. For example, suppose someone takes a picture of a sculpture. Who owns the copyright – the photographer or the sculptor? Though it’s a bit tricky, the correct answer would have to be the original sculptor since, under copyright law, he is the sculpture’s original creator. Though the photographer has a photo of the work, he cannot own the copyright to the statue because he is not the original creator and must have permission to reproduce images thereof.

Suppose that photo was subsequently made into a postage stamp without the sculptor’s permission, and the seal made millions of dollars in sales? Who has the right to the millions? Again, the correct answer is the sculptor. No matter how many times the work is re-created and paid for and no case who has possession of the work, if the person in custody is not the original creator, that person is not entitled to the copyright.

Exclusivity

The photographer has the freedom to use the images as they please because they own the rights to them. This could include commercial use – as we said, it’s a great way to make some extra money on the photographs!

On the whole, it’s flattering if your wedding is shared for the world to see because of the beauty of the images. However, you might not want the photos of your special day being used without your knowledge. If you’re a private person or seeking total exclusivity, it’s something to discuss with your photographer.

Generally, wedding photographers are out to capture your day beautifully and ensure their images aren’t manipulated in any way.

Andrew at Light Works Photography explains, “I always ask if it’s OK for me to use any of the pictures from the wedding for my promotion, i.e. on my blog or social media. I strongly believe that you have ethical, if not legal, rights over what happens to the photographs. They are of a personal and private time, and you should have the choice for the pictures to be in the public domain or not.”

After the legal stuff

So your wedding day is over. The honeymoon has been and gone, and as you shake the sand out from between your toes and moisturise your sun-kissed skin, you realise all is not lost from that particular time because it’s time to look through your wedding photos!

Photographers typically deliver around 500 wedding photographs. This might seem like a lot but remember; they were snapping away during all of the little moments even you missed.

We live in a digital age, and this is reflected in the way you receive your images. Every photographer is different. Some offer a locked online gallery for you to peruse, and they will give you a password for exclusivity. Others provide a USB with all of your images in JPEG format. They can also offer a CD of all of your pictures.

Understanding that it’s your wedding day, photographers provide you with your images in these formats so that you’re free to print as you will. This enables you to print multiple images to share with family and friends.

Some photographers watermark their images. This means they insert their logo or company name onto the image somewhere. Generally, this will be discreetly in a corner. Double-check your contract to ensure you will be given non-watermarked versions of your photographs. If you aren’t, it can be restricted because you are forced to pay for non-watermarked prints by the photographer. Rarely photographers will provide print versions of your photographs. It would help if you didn’t assume that they will always offer versions to print yourself.

Social Media

The digital age is upon us. As a result, of course, we want to share fabulous photographs of our wedding day across social media. Most photographers won’t have a problem with you posting your wedding photographs on your social platform. Most will assume you’ll share them for your loved ones to view and provide low-res versions for social media.

Can a photographer use my wedding photos?

That being said, it shouldn’t be assumed that it’s OK. Chat with your photographer and double-check their preferences. They may require you to credit them by tagging them in the image or the caption.

Negotiate a Photography Copyright Release Form

If you’re negotiating with a wedding photographer, it’s a smart idea to ask for a copyright release. A copyright release is an agreement between the photographer and the client. A photographer gives up the copyright to work in a properly drafted release and grants the client’s full permission to do what they want with their wedding photos. The release should also include the title of the work, the photographer’s name, and terms that explain who can do the result.

Copyright releases can be a simple letter with a statement of clearance in plain English or a full contract with complicated terms. In the end, it’s your wedding, and you should get what you want.

What does this all mean?

Shooting weddings is what these professionals do year after year. They aren’t out to steal your images or restrict your access to them. Above all, they generally love what they do and want to tell the story of your day with their fantastic photographs.

As long as you are enjoying your images for private use, you’re OK! As a result, most are incredibly lenient and don’t mind reusing your photographs, so long as you talk to them about it beforehand. (Not every time you copy or reprint your pictures, though, of course!) They understand that you will be printing copies to share with your nearest and dearest.   

Equally, photographers are unlikely to further commercial use of your wedding pictures without asking you for permission first. This may include the use of images for their marketing purposes, such as websites and portfolios.

Understand that it’s common to practice for your photographer to own the legal rights to the images and help you access them and share them as you please. Starting to think about hiring a wedding photographer? Check out our range of Mornington Peninsula wedding photography here.