So let’s talk about photographing an event as a wedding vendor. The average wedding is considered a private event. And as the host of a private event, the clients control what photography may occur. They’re King of the Castle. The Numero Uno. El Capitan.
All those present, as either a guest or a vendor, are there at the clients’ discretion and prerogative. If the clients do not want photography, then there’s no photography. If someone breaks that rule, what is the final legal conclusion? Well, offenders can go from guest to trespasser and be put out on front street. That is the power of the host. You don’t have to be here, but if you are, you gotta follow rules of the boss, i.e. the client.
The pitfall is not asking for permission up front. Because, vendors, we’re talking bakers, florists, planners, DJs, are generally retained to perform one function at the event. So, photographing a wedding is NOT something that the law automatically allows you to do simply by the fact that you are already there doing your one particular job. Remember, you serve at the discretion of the client, pursuant to the contract. For further info on this, check out this article.
So what can happen if you the vendor fail to get permission to take photos, but you do anyway and use them for sales or marketing? The client will likely have the right not only to kick you to the curb, but to sue you. So how can we avoid getting sued but also get all those pictures that we want?
THE SAFEST OPTION: GET YOUR CLIENTS TO SIGN A PHOTOGRAPHY RELEASE
Incorporate a PHOTOGRAPHY RELEASE into your client contract. A release is the client providing the vendor (1) the right to take the images at the event, and then (2) to utilize the client’s likeness, which appears in the images.
The Client’s likeness? What you talkin’ bout Willis? People have an exclusive right to capitalize or make use of on their own appearance or likeness. It’s why I can’t print all of my pictures of Brad Pitt on a shirt and start selling them. Brad Pitt’s the only one allowed to do that. He has the exclusive right to exploit his likeness, and depending on what state you’re in and how famous your client is, so does your client. So the release allows you to utilize the client’s likeness in certain ways.
Some releases may be broad: “we can use the images for all online marketing purposes, including use on our social media.” Some uses can be very specific, like, “I will be allowed to enter these images into the Bride of Frankenstein Magazine’s Wedding Photo Contest.”
It sounds crazy, but this is very important. A couple months ago, a videographer uploaded to Youtube a funny clip of a drunk groom attempting to take the garter off of the bride. Of course the bride was ‘traumatized’ and sued for intentional infliction of emotional distress in Federal Court. A strong contract saying, I have the right to put your images online, would have almost certainly have prevented this lawsuit. So this is definitely a situation that comes up often that you want to address by having a release.
WEDDING VENDORS SHOULD ALSO CONTRACT FOR COPYRIGHT OWNERSHIP TO IMAGES USED
But what about copyright? The Copyright is a set of rights and protections given to an owner or author of the photograph. The copyright owner has the EXCLUSIVE right to do all kinds of things: publish the photo, distribute it, hang it up on the refrigerator at your momma house, etc.
Are you the copyright owner of an image that you took at a wedding just because YOU took the images, or just because your INTERN took the image, or just because you hired a SET photographer to take the images? Not necessarily.
Generally, he who smelt it dealt it. In other words, generally, and I mean very generally, the person that takes the photograph at the wedding, is the copyright owner of the photograph. Exceptions to this default rule are going to be when there is a contract stating otherwise, or there is an employee-employer relationship. But still, there are grey areas and copyright ownership can get very sticky and complicated.
So it is absolutely critical to deal with copyright ownership in your contracts. For realz. Let’s talk first about contracts with your interns, independent contractors, set photographers that you have hired, your mom, whoever, in any situation where you personally are not hitting the button and taking the photos. In that situation, if you want to own the copyright, you will want the individual taking the photos to “ASSIGN” and “TRANSFER” all of their rights in the image to you. The assignment will go in your contract that you have with them. This ensures that you contracted around the default rule that the smeller’s the feller.
I worked with a vendor once who had all of her interns take pics and such at all the events she did. They were like her social media marketing interns. One of the interns left to start her own company, and used those images. Because the vendor did not have contracts dealing with copyright ownership, she was out of luck. Had she had a written agreement with interns regarding copyright ownership, she could have been the owner, giving her exclusive control over the images. And when you have exclusive ownership over photos, you know what you can do? Send one of those nasty a cease and desist letters.
“Dear Ms. Soon to be Broke, you better take down MY images you ungrateful jezebel. I gave you a break when you were first starting out and this is how you repay me?”
And if that intern doesn’t comply? Federal lawsuit time.
Now, with contracts with your clients it’s the same thing. To cover all your bases, in your CLIENT contract itself, let the client know that you will be the copyright owner of the images taken by you or your team at the event. You can put this in the same section as the release.
RELEASE VS. COPYRIGHT
To sum up those points, and so that we don’t get confused, think of the release and copyright as two sides of the same coin. If you don’t have copyright ownership or at least a license, then you’re almost certainly going to have no right to use the image AT ALL. If you don’t have a release, and the client appears in the image, then you cannot use it without opening yourself up to liability from various lawsuits based on misappropriation of likeness or similar claims, like the distress lady.
The copyright deals with the legal right associated with the USE of the IMAGE ITSELF, the release deals with the CLIENT’S RIGHT TO USE THEIR OWN LIKENESS as it appears in the image. To be fully protected, you should get both.