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Here's the scenario:

I work for a company that does some home improvement work.

An architect designed the house, we did the work. I found pictures of that work online, contacted the architect and his response was that he had hired a photographer to take those pictures.

I contacted the photographer and he wants to sell me the pictures — for a lot of money I must add.

I originally wanted to post the pictures on my website, with a link to the photographer's web page, obviously crediting him, and the architect for the work as well.

But now I have a couple of questions:

  1. Does he own the copyright to those pictures even if they are of my work?

  2. Can I use the pictures, even if he disagrees, if I credit him for the work?

  3. Can I get in trouble for any of it?

  4. Can he get in trouble for using pictures of my work?

I really thought it would be nice to link to his page displaying his work and ours, and since the pictures are about five years old, I didn't think he would want to charge so much.

I've emailed the US Copyright office, but I didn't get a convincing answer about the whole scenario:

"Generally speaking, the copyright ownership rights in a photograph belong to the photographer."

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4 Answers 4

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Generally speaking, the US Copyright Office's terse answer is a complete reply: the copyright of the photo belongs to the photographer. The owner of the property may also have some rights which could limit the photographer's commercial use of the material (including, for example, selling it to you).

I know one old photo seems like a little thing and it seems like the photographer could be more flexible, but consider that that's how he is making his living, and it's not really an easy way to stay afloat. The pricing reflects that. And, take a moment to consider the fact that you want this photograph demonstrates that it does have value.

If you need photographs of your work, you could hire your own photographer, or do it yourself (which, for great results, is harder than it looks). If that seems expensive or troublesome, that gives you an idea of what the existing photo might be worth. If, on the other hand, that'd actually be easier and cheaper than the offered price, then you can just solve the problem that way.

In general when approaching a deal with someone, you need to consider your best alternative to negotiation. If you can't get this picture for what you want, what will you do instead? How much will that cost you, and will it provide the same benefits? This will help you both know what you can offer, and give some perspective into what is reasonable. If it turns out that the photographer's idea of reasonable is still far from your alternate options, walk away happy.

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    \$\begingroup\$ @Guisasso — you could also work to change intellectual property laws in the U.S., as there are many, many things in the law which don't really feel in line with people's common understanding of how it ought to be. But that's kind of an uphill battle. \$\endgroup\$
    – mattdm
    Nov 20, 2012 at 19:37
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    \$\begingroup\$ @guisasso: The photos are photos of your work, but someone else carried out the creative act of making an image of it, which makes that image their work. Look at it in terms of your own business: If I wanted you to install a new roof on my house, would you do it at no charge if I was willing to let you stencil your name somewhere on one of the fascia boards, where I get to choose the location? \$\endgroup\$
    – Blrfl
    Nov 20, 2012 at 23:06
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    \$\begingroup\$ @guisasso: Business doesn't run on nobleness or courtesy. The photographer probably feels that if you're going to use his work as a tool to generate additional work (and, by extension, revenue) for yourself, he should get something for it. Credit is a nice gesture, but the value of that exposure may not stack up to the value of selling you the rights to use the image. If he already has a thriving business, giving his work away reduces the value of what he's already done and the potential value of anything he does in the future. \$\endgroup\$
    – Blrfl
    Nov 21, 2012 at 12:34
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    \$\begingroup\$ @guisasso So anyway, if you need advice on how to take that photograph yourself, we can help with that too. :) \$\endgroup\$
    – mattdm
    Nov 21, 2012 at 14:38
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    \$\begingroup\$ @guisasso While you may feel that it is not fair to you, anyone who has had their work used to promoite somebody else's business without remuneration or permission would feel much more hard done by. You keep asking for consideration and compensation of your work while not acknowledging that others have a valid reason for compensation of their work. You're the one who is being unfair. \$\endgroup\$
    – user9817
    Nov 22, 2012 at 8:24
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IANAL so you should ask one. The answer in your situation is likely to be very complex and greatly depends on where you are located and the particular contracts between the parties.

ANYTHING BELOW THIS LINE IS NOT LEGAL ADVICE, NOR DOES IT REPLACE ANY

Broadly speaking, in most parts of the world, including Canada since November 7th, the copyright of the image belongs to the photographer by default. Since that photographer was a work for hire from the architect, had contract with the architect which may or may not have transferred the copyright to the architect. Before November 7th, this was the default in Canada. So, usually yes, he owns the copyright.

You cannot rightfully use his pictures if he disagrees. If you do, the photographer is likely to sue you and win damages. This is something many photographers I know have done often.

Owning the copyright to a photo is not sufficient to do anything with the image. For people or property, the image in the photo belongs to its person or owner. Normally, photographers obtain permission to use the image for commercial by getting a model or property-release signed.

Unless you also own the home which your company fixed, the owner is NOT you either. Meaning if the photographer needed a release to use the image for commercial purposes, he had to obtain permission for the owner.

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    \$\begingroup\$ IANAL either, but let's not forget that the architect may hold copyright in the structure if it's sufficiently innovative (something you can usually count on with a Gehry or Libeskind type), adding another layer of permissions you might have to license. Normally, a builder or contractor's rights are limited to rights of interference, like mechanic's liens, which prevent other people from exercising their rights until the bills are paid; the work itself is generally not copyrightable and "for hire" to boot. \$\endgroup\$
    – user2719
    Nov 20, 2012 at 18:09
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    \$\begingroup\$ @StanRogers: I believe copyright for a building would only apply if you were going to try to build a copy of the building, not take a picture of it. \$\endgroup\$
    – whatsisname
    Nov 21, 2012 at 0:42
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    \$\begingroup\$ @guisasso: the world doesn't owe you anything. You were hired to build something, that's what you did. What other people do with the end result, you have no control over. If you built a coffee shop, would you expect everyone that comes in and hangs out to pay you, in addition to the coffee shop owner? \$\endgroup\$
    – whatsisname
    Nov 21, 2012 at 0:44
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    \$\begingroup\$ @guisasso Regarding He'll only lose from this - Well, no. You'll only lose from this if you try to sneak around the copyrights, because any photographer successfully making money knows their rights and how to protect them, and most likely has a legal budget bigger than you can imagine. \$\endgroup\$
    – Anindo Ghosh
    Nov 21, 2012 at 1:44
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    \$\begingroup\$ @whatsisname -- not even close to true. A photograph would be a derivative work. You're thinking of something closer to a patent than a copyright. \$\endgroup\$
    – user2719
    Nov 21, 2012 at 1:46
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Since the photographer owns the copyright, the solution is simple: hire your own photographer to shoot the construction site again, and have your contract with the photographer spell out that you get copies of the photos.

For a more complex answer, you will have to pay a real lawyer. IANAL, etc.

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I'm also not a lawyer, but here's my $0.002

There are two related things happening here, first, the copyright.

  1. Yes, he does own the copyright to the photos
  2. No, you can't just use them without a licensing agreement, even if you give credit
  3. You won't go to jail, but in cases of infringement and you take it to court, you'll have to pay damages, legal fees, (your lawyer, his lawyer AND all court costs), you still won't be able to use the images AND you'll have a court judgement on record against you (this can really screw up your credit, regardless of circumstances)
  4. Maybe.

No. 4 leads to the second part, which is less clear. He might not be able to use the work, depending on how you've protected it as IP. Images of some buildings/structures, like the Eiffel Tower are protected from commercial use, but most are not.

My advice is to NOT use the photos until you have a licensing agreement in place. As to preventing him from using the photos, you'd better talk to a good IP lawyer if you're serious.

The cheapest and most obvious answer is to hire someone to take photos and negotiate the licensing with them up front.

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