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TL;DR - Would photographs that I've captured and displayed on my personal photography website be considered commercial if I'm not selling them? I would purely be selling my general photography services, or other photos that I know I can sell without any concerns for permission.

I'm currently building a photography site showing photos I've taken. I would not be selling them for purchase - they're purely to demonstrate the composition style I like and the types of photographs I've previously captured. But I want the site to be used as a way for people to pay for my services (e.g they wanted to use me in the future for their own personal shoots...)

If I had a photo I'd previously taken (e.g such as in a museum, and the museum requires permission for commercial still shots), would placing that photo on my site be classed as commercial, even if I'm not selling it?

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    \$\begingroup\$ Legal questions get better answers if you can tell us where you live. \$\endgroup\$
    – Bob Macaroni McStevens
    Commented Mar 16, 2021 at 20:29

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Better asked at law.SE.

But my personal I-am-not-a-lawyer and I'm in the USA call? Yes, posting an image on a website to promote your photography business is commercial use.

Simply selling prints of an image is not commercial use, btw. The logic, as I understand it, is that once used in an ad/commercial, whatever's depicted in said ad/commercial is implied to endorse the advertised product/service. That museum may not want to be associated with your photography business without being reimbursed. They pay to maintain the unique space that makes the visual interest. Without them, you couldn't have made the shot. Making money off their work without giving them a piece of the profit is what they're not happy with. If you're not happy paying them, find a different space.

Whether or not you took the photo as a pro or plan to sell prints of the image is irrelevant. What matters is that you're using it for promotional purposes.

See also: https://www.asmp.org/releases/model-releases/frequently-asked-questions-release/

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  • \$\begingroup\$ In the U.S., portfolio images are generally protected from being considered commercial use. This assumes there's nothing embedded in the image that promotes your business, nor that the image is displayed on a page of your website or elsewhere that includes promotion of your for-hire services. If included in a collection clearly labelled "portfolio" inside of which there are no promotional messages or solicitations, it's generally allowed that it is not commercial use. But in the case of photos taken on someone else's private property there are almost always other considerations. \$\endgroup\$
    – Michael C
    Commented Mar 18, 2021 at 4:47
  • \$\begingroup\$ In the case of photos taken in a museum that you probably paid a ticket to enter, the terms and conditions of entry on the ticket, or posted somewhere on their premises (even if you did not have to pay to enter), or on their website (again, even without having to pay to view the content they host) would be enforceable. By entering, you agreed to play by their rules. So you need to check with them. \$\endgroup\$
    – Michael C
    Commented Mar 18, 2021 at 4:48
  • \$\begingroup\$ @MichaelC, you really sure these should be comments, instead of a separate answer? 'Cause it really reads like a separate answer. \$\endgroup\$
    – inkista
    Commented Mar 18, 2021 at 6:57

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