Topic: Intellectual Property
Time Investment: 6 Minutes
Suggested Product: Album Design Contract
The legality of designing and printing an album for a client with another photographer’s photos depends on the express terms of the licenses granted by the copyright owner. Like other third party services like editing, it is essential that the appropriate licenses are granted by the copyright owner, rather than just the client (who may not be the copyright owner).
Professional services who offer album design and print services often have statements like this on their website:
“Typically, our clients are professional photographers. The process would be a little different for you than it would be for a photographer, but it IS possible as long as you have the rights to your high-resolution images. We would work with you during the album design process and then print and ship your album.”
Another says they: “provide wedding album designs, professional wedding albums, post-processing and retouching services for photographers.”
The reasons why outsourced editing and album creation are generally business to business (B2B) rather than business to customer (B2C) is precisely because the copyright ownership issues are significantly easier to deal with when there is not a third party (the other photographer’s client) involved in the transaction. If you are interested in providing editing services on outsourcing editing, review this article.
What if you really want to provide album creation for a client with another photographer’s photo?
The first hurdle is to establish what kind of rights you need to create and print an album for a client with another photographer’s photos.
Does the client own the copyright? If yes, ask to be sent a copy of the transfer of copyright. If no, ask to see a copy of any licenses provided by the copyright owner to the client.
It is quite common for clients to assume that a print release equates to copyright. You, as a professional, have the opportunity to participate in educating your clients about copyright, different types of licenses, and what they can and can’t do with images they have in their possession but for which they do not own copyright.
A print release alone, depending on its explicit terms, may not be sufficient to allow for the creation and printing of an album.
Let’s look at what a print release generally involves.
Now, let’s think about what is involved in editing and how you might need to edit images or create derivative images in order to create an album?
Cropping, copying the images onto your hard drive, transmitting them to the print shop–a print release may not be sufficient. If the print release details that editing for the purpose of making an album is included in the license, then you might be in the clear. However, if the manipulation or electronic recording and copying of the images is not explicitly discussed in the print release, then you will likely need an additional license.
Furthermore, it is highly unlikely that the print release would allow for commercial use, which is likely your purpose if you are creating an album for a client from another photographer’s images.
Now, do you have an appropriate license?
Providing Album Creation Services?
In order to provide album creation services, it is wise to have documentation prepared to provide legal protections for you as the service provider.
- A disclaimer and waiver as part of your service provider agreement that waives responsibility to improve photographic quality or guarantees the quality of the finished product.
- A contract that clearly articulates the parameters of the album creation and printing services.
- An indemnification wherein the client indemnifies you against any copyright infringement claims relating to the images provided by the client (and attaches a copy of the license signed by the copyright holder that allows for editing and the creation of a derivative work).
It should be noted that the indemnification does not absolve you from responsibility for copyright infringement, but it may give you a way to enjoin the client to any lawsuit and may enable you to be able to recover damages awarded to the copyright holder from the client.
In order to establish who the copyright holder is, you might consider looking at exif data for the images to see if there is any copyright information. However, you might need to be cautious about doing this on your own computer rather than the client’s because this would require you to copy and store the images – which is a potential breach of copyright in itself.
For those getting started in photography, it is important, perhaps, to note that whether you receive money for creating an album from another photographer’s images is irrelevant to the question of copyright infringement. If you copy or alter another photographer’s work without permission, it is copyright infringement. The one exception to this is the client who holds the print release being able to create an album for their own use. The difference between you providing this service and the client doing it for themselves is the commercial intent (which is said to exist whether or not you receive financial benefit).
If you do decide to offer album creation as a service, or you decide to outsource some of your album creation and printing, be aware of the need for clearly written licensing agreements and possessing the appropriate releases to be able to copy, edit, and create a derivative work in the course of album creation and printing. This could be a lucrative service to provide, but only if all of the legal documentation is in place to protect all concerned. It is certainly less legally problematic to provide this service to photographers themselves – under a business to business model – rather than directly to clients who bring photographs taken by other photographers and who may, or may not, have the legal authority to access or grant you appropriate licenses.