Copyright is like any other property, in that all or part of the rights in a work may be transferred by the owner to another. Copyright law applies whether a photographer is paid or unpaid, professional, semi-professional or a family friend (or family member) with a camera.Copyright originates in a photographic image at the moment the shutter is activated.
Only a copyright holder has the exclusive rights to a creative work, and only they can grant a person a license to use their image or work – an exception being ‘work for hire’ situations where the organization employing them will own the copyright where the photography is part of their usual duties.
The key initial legal question, then, is whether the photography is a result of “work made for hire.” It might seem strange to ask if an unpaid photographer of an event has “made a work for hire” but bear with me because it’s still an idea that you need to understand.
Are you an employee of the organization? I mean W-2 employee? If yes, Is photography part of your general duties? If yes, then the photographs are owned by your employer (who presumably organized the event). If no, and for the sake of the rest of this article we are assuming no, then you as photographer would be the copyright owner of the event and have the exclusive rights to the images to license for payment or not, as you see fit. You can produce a “work made for hire” as an independent contractor, but this will need to be specifically agreed to in writing and must satisfy some additional legislated requirements – this is definitely a topic to explore with an Attorney.
Here’s the way to avoid all of the above: Make sure you’ve had these conversations before the event so you don’t get blindsided by an unexpected request. Even if you will not be paid because you want to volunteer your time for a worthy cause, then make sure you have a written agreement as to any fees that may be payable for the use of any images.
The bottom line is that many clients, including non-profit or community organizations (or even family and friends) have the misguided belief that if they hire a photographer or if a photographer volunteers their time to photograph an event, then they as the hirer or as the event organizer owns the resulting photographs. This simply isn’t the case. Unless otherwise agreed to, preferably in writing, the copyright in the images from an event where you are paid or unpaid photographer (and not an employee taking photographs as part of your normal duties), would be owned by you, the photographer.
When paid, the photographer is usually being paid for their time. The hire agreement may also include a license (or licenses) that the photographer will give the client to use their images for a specified purpose.
Even if you own copyright in the images from an event, you may need to be careful before offering a license to a third party for the purpose of advertising or indeed using the images in your own advertising. If the images were taken in locations, or at events, where there is no reasonable expectation of privacy (like a sporting event, or wedding, or in a public place), then a photographer does not need permission of the individuals who appear in that photograph, in order to publish it in a newspaper, textbook or in a magazine, or on their own website. The clarification here is that the image must be used in an editorial manner – for the purposes of “artistic expression” — as opposed to for the purposes of advertising. Other examples of this include event photographers, street photographers, news reporters, and even paparazzi. It does not matter if the photographer was paid or unpaid, if they are self-taught or art school trained, if they are professional or a mom with a camera.
As an aside, these rules do not only apply to adult subjects. Rather, a subject can be any age, and a photograph can be published for editorial purposes without the permission of the subject or the subject’s guardian. This includes images of minors, with the exception of images that depict the indecent exploitation of children.
All of the above notwithstanding, you cannot use images of people (or any other product or property in which there is copyright) without the consent of the subject (or guardian if they are a minor) or the copyright owner, for the purposes of advertising. This includes licensing images to stock agencies, for use in print or online advertising, or in any other way that could be considered endorsing a product or service.
It’s not as easy to be an unpaid photographer at events as it once was. Freelance photographers are finding that some event organizers are increasingly cracking down on them taking photographs at ticketed festivals. This is in part because the organizers want to retain any revenue from the sale of images of the event, but also because they want to be able to use the best of the images in their own marketing. This might mean that you would need to pursue media accreditation for an event at which you’re hoping to take images – even unpaid – or that you will need to have a separate agreement with one of the participants, who will then, perhaps, pave the way for you to be accredited.
Bottom line: If you photograph an event as a unpaid photographer, you are not required to automatically give your image or a license to use your images to an event organizer. Photographing events as an unpaid photographer is not necessarily a bad thing to do, but what is important is that you make sure everyone involved, including you, is clear about expectations, ownership of copyright, and any licenses that you as a photographer might be willing to give, and how much (if anything) you will be charging for those licenses.