Navigating the Visual Landscape: A Guide to Photography Copyright for Architects
In today's visually-driven world, where social media and online platforms are paramount for showcasing architectural projects, understanding the intricacies of photography copyright and licensing is more crucial than ever. Professional responsibilities when working with intellectual property, particularly photographic imagery, are a key area for architects to understand.
While architects commission and pay for photography, they are generally not the copyright holders of those images; copyright remains with the photographer. This discussion aims to educate and raise awareness, not to provide legal advice, stressing that for specific circumstances, seeking legal counsel is always recommended.
The Foundation: Photography Copyright in the US
In the United States, copyright is automatically applied to any photographic work created. This means photographers don't need to register their work for it to be protected. Copyright safeguards a photographer's investment in time, equipment, talent, and the final material. It also grants photographers control over how their content is used. Therefore, to copy or share someone else's images, you generally need permission or a license from the original copyright holder, unless the copyright has expired or an exemption applies.
Copyright vs. Licensing: Understanding the Distinction
While the photographer retains copyright, they will typically license or assign rights to a client for the use of the material. This means the client can use the images under specific terms but does not own the material or have a say in how it's used beyond those terms.
There are two primary types of licensing:
Non-exclusive License: This is the most common type for architectural photography. Under this license, the photographer may continue to use the images and pass on additional licensing of those images to other third parties not associated with the original commission. This is how many photographers generate ongoing income.
Exclusive License: This grants the client total rights to commercialize the images, to the exclusion of all others, including the photographer. This type of license typically comes at a greater cost than a non-exclusive license because the photographer accounts for any future earning losses. Even with an exclusive license, the copyright generally remains with the photographer.
Professionals are strongly advised to have a clear conversation with their photographer to understand their licensing terms and how they can be tailored to benefit the architect's marketing and brand strategy. This is particularly relevant whether you're working with architectural photography specialists in New York or interior photography experts in Los Angeles.
Why Control Matters: Protecting Your Brand and Others' Privacy
Uncontrolled dispersion of photographic material can devalue the work and, in turn, dilute the client's business brand. Experienced photographers understand that their clients invest heavily in their brands and strategic marketing directions. If images leak into the marketplace and are used by other consultants or unrelated parties, the architect's brand can be watered down, undermining their original intent.
Appropriate licensing ensures that the terms and conditions complement the architect's business interests and marketing efforts. Furthermore, controlling image use is vital for protecting the architect's own clients, especially regarding privacy or release date clauses, particularly for residential projects. A "use it at all costs, apologize later" mentality is dangerous when dealing with copyrighted commercial material. Photographers want their clients' work to be seen but correctly and purposefully, complementing the client's direction, rather than simply populating an oversaturated market.
The "Cease and Desist" Test: Can You Use That Photo?
A picture is worth a thousand words, but when that picture is used and is copyright protected, those thousand words can turn into three: cease and desist.
To determine if you can use a photograph for a specific purpose, ask these two questions:
Do you own the copyright or have you been assigned the correct licensing use for that particular image? This is generally found in the terms and conditions of the photographer's contract. If yes, you can use it as permitted.
If not, are you undertaking "fair use" of that image?
It's crucial to distinguish "fair use" from "free use". US copyright law defines what constitutes fair use, generally covering categories like:
Images for research, study, or education
Criticism or review
Parody or satire
Reporting the news
Professional advice from a legal practitioner
There are no exceptions for using copyrighted material just because you believe it's fair use or you're not making a profit.
Copyright in the Digital Age: Social Media, Awards, and Other Media
The digital environment presents numerous scenarios where copyrighted material is used. Common pitfalls occur in social media, industry awards, and online/print publications. It's essential to remember that many external organizations (like social media platforms or awards bodies) include terms and conditions that shift responsibility for legal compliance back to the person submitting the material. Ultimately, it is your responsibility to ensure the material you are using is legally permissible.
Instagram and Its Terms of Use
Before posting content on Instagram, be fully aware of their terms and conditions. In summary, Instagram states that you can only post content that doesn't violate someone else's intellectual property or copyright attributes. The safest approach is to use material you've created yourself. Critically, it's possible to infringe someone else's copyright even if you gave credit to that person in your post. It's also possible to infringe if you included a disclaimer, if you didn't intend to profit, or if you found the work on the internet or copied it from someone else's website. Thinking that it's okay to use simply because someone else posted it first, or believing it falls under fair use without verification, can also lead to infringement.
Instagram's three golden rules for correct material use are:
Did I create all the content in the post myself?
Do I have permission or licensing from a third-party source for the material I'm using?
Does my post constitute fair use?
Problematic Instagram use includes instances where other companies repost an architect's commissioned photo (without paying for it) and then self-promote their own services, or screenshot an image and use it directly as a selling point for their products without photographer credit or permission. This highlights the importance of how social media posts are curated and information is used in a business and commercial sense. This applies whether you're showcasing stunning architectural photography projects from New York or compelling interior photography from Los Angeles.
Awards Submissions
Entering material into awards is a very challenging area when it comes to copyrighted material. A large majority of awards' terms and conditions for the architectural industries often state that all material being entered permits the awards organization to use the material for any media or advertising purposes, including online, print, or screen. They also often state that any material submitted must not be copyrighted to any third parties, and that submitted material allows the awards organizers and any other third-party sponsors access for promotion of their own interests.
Awards terms often include a requirement for a photographer's statement granting permission for broad use, including by external providers and official publishers. Architectural companies sometimes haven't fully understood what they're entering material into and essentially don't have the right to pass on copyright to someone else if they don't have copyright ownership in the first place. It is very important for staff in offices to fully understand the legal ramifications of passing on copyrighted material when entering into awards. This can lead to images being dispersed inappropriately, jeopardizing an architectural firm's branding, and risking the privacy of project owners.
Other Media Sources
These include online forums, online publications, books, and magazines, which also have terms and conditions sections. It is very important for individuals and businesses to read those and to ensure that the work being used is proper and legal.
Key Takeaways
Copyright is Automatic: In the US, copyright is automatically applied to photographic work.
Photographer Retains Copyright: When you commission a photographer for architectural photography or interior photography, they generally retain the copyright; you receive a license to use the images.
Understand Your License: Be clear on the terms of your licensing agreement (non-exclusive vs. exclusive).
Control Image Use: Diluting photographic material through a lack of understanding and media control exposes your organization and staff to risk.
Ask for Permission: Always ask permission or ensure you have appropriate licensing before using someone else's copyrighted image.
"Fair Use" is Not "Free Use": Understand the strict guidelines of fair use as defined by US copyright law.
Educate Your Staff: Ensure staff responsible for social media, marketing, and submissions understand their legal responsibilities regarding copyrighted material.
Ignorance is No Excuse: In legal situations, claiming ignorance of copyright laws is not a valid defense.
Check for Copyright Within Copyright: Be aware that a photograph itself might contain copyrighted elements (e.g., well-known pieces of artwork or other aspects within a photo), requiring additional permissions.
Value Professional Work: Respecting copyright protects the value of creative work, both for photographers and architects.
While legal action is a last resort, instances have shown that inadvertent misuse can sometimes be resolved with a polite request, but situations where multinational companies use images for full-page advertisements without permission may require legal intervention. A collective approach among creatives to build strength and ensure proper use is beneficial, rather than a solely litigious one.
Ultimately, fostering open and frank discussions with photographers and understanding their licensing methods will ensure that everyone's goals and aspirations are moving in the right direction, protecting both the photographer's creative rights and the architect's brand integrity. This commitment to proper use is essential whether your projects are featured in New York or capture the essence of Los Angeles architecture.