Picture this. You and your betrothed spend several months micro-managing every aspect of your impending wedding. You will probably agonise over your choice of venue, ceremonial garbs, wedding cake, guests, wedding invitations, souvenirs, band (or DJ if you are so inclined), flower arrangements, caterers and several other issues. It is likely that at some point you will also seek to engage someone to be your official photographer. With so much on your mind, the last thing you will probably think about is what legal rights are attributed to the wedding photos. You probably think that as long as you pay the photographer, the photos you commission are yours and that you can do with them as you please. The truth may surprise you.
The issue goes beyond who owns the physical prints and/or storage device(s) given to you by the photographer and relates more to who owns the underlying image rights depicted in those mediums. In other words, who owns copyright in those images depicting you and your wedding ceremony? The fact is, this person is not automatically you, even if you are a paying customer.
In Malta and many countries around the world it is the photographer who retains ownership over the images he or she captures unless the said photographer assigns copyright in those images, in writing, to you, the client. This point is crucial. If you do not sign any document that includes a clear copyright assignment clause in your favour, the photos taken by your wedding photographer will simply not belong to you. Without such transfer of copyright, the payment he or she may receive will simply represent payment for services rendered and not for the sale or assignment of the images themselves.
You, the client, will probably be given the prints or digital files for your own personal use but if you decide to make use of those underlying images in any other way (for example, publish them in an international magazine against payment or even publicly share them on an online platform) legally, you would need clearance, in the form of prior consent, from the copyright holder and therefore, from the photographer. In some cases, the photographer may also claim royalties or some other form of payment from you (for example, if you seek to commercialise the photos or use them in a certain way). The fact that, realistically, the photographer might choose not to enforce his or her rights in this manner does not change the fact that unless so agreed in writing, you will not own the ‘photos’ – even if you are the main subject depicted therein.
Without entering into certain legal complications, such as exceptions to copyright, it should be said that you may enjoy other rights associated with some of the images captured by your photographer. For example, if the images clearly depict you or the identity of others, the photographer is generally precluded from publishing those images on the Internet without your consent (or the consent of your guests) as that would constitute a data protection violation. However, the issue at hand here is ownership of an intellectual property asset, in this case an image or images. Should you acquire copyright in any such images, you would then be in full control over what can and cannot be done with them, including by the photographer him or herself. Following copyright assignment, the photographer would need your consent before making use of the images in any substantial manner.
The best generic advice that can be offered in this context is that you should always make sure you carefully read what you are asked to sign and if you are not asked to sign anything, make sure that you ask for the photographer’s written terms and conditions (if any). In both scenarios, if you want more than a simple ‘right to use’ the images, you need to check that there is a clear copyright assignment clause in your favour. Most professional photographers are aware of these legal principles and will likely be prepared for such a request. It should be said that purchasing an image outright might affect the cost (as opposed to merely being given a licence for personal use). If the photographer appears to have no idea about such matters, it is advisable to raise this issue yourself, ideally after having sought legal advice. In truth, it is also advisable for photographers as creators, and therefore first owners of the images, to receive legal advice on all such matters.
You should also take note of any reservations or specific licensing conditions that may be included in the contract you are asked to sign (if any). For example, even if copyright in the images is to be assigned to you upon signature, the terms and conditions might allow the photographer to use sample images for self-promotion purposes, including online publication on social media platforms or dedicated websites. Although this is a common undertaking and one that can generally be deemed reasonable, some individuals prefer not to grant such a right. It is completely up to you what you allow the photographer to do with those images – once you have acquired copyright in the same. If you don’t acquire copyright, you cannot authorise or prohibit anything in terms of copyright law (not taking privacy laws into account).
The point of this article is this: whether you are engaging a wedding photographer, a graphic designer to work on your company logo or website, an artist to illustrate your book or journal, a composer to provide music for your audio-visual creation, a writer to provide you with a script for a play or television show you are producing, the basic legal principle is the same. Except in certain limited instances in the course of employment (relating to computer programmes and databases), in terms of the Maltese Copyright Act (Chapter 415 of the Laws of Malta), the author/creator of the work in question is deemed to be the copyright holder, unless copyright in that work is expressly assigned in writing.
So, who owns your wedding photos?
The simple answer is the photographer does, unless you get him or her to assign, in writing, copyright in those images to you, the paying customer.
Always make sure that you consult a copyright lawyer and receive expert advice on all such matters before committing to anything with third parties and particularly, before signing anything. This applies whether you are the client of a content provider or else the creator of the work itself.
Sometimes, all it takes is some minimal effort to avoid legal complications arising at a later stage. Besides, going back to the wedding scenario, couples spend months (sometimes years) sorting out copious other issues, at great expense. Why be careless with your wedding photos? Why not make sure that you know exactly what you are paying for and who will own those images?
Dr. Claude Micallef-Grimaud is a senior associate at Mamo TCV Advocates who specialises in intellectual property law and data protection law.
Disclaimers
The image used to accompany this article is used with the permission of the right holder (under license).
This document does not purport to give legal advice. Should you require further information or legal assistance on any matters relating to Intellectual Property law, Data Protection law, IT law or any related issue, please do not hesitate to contact Dr. Claude Micallef-Grimaud or Dr. Antoine Camilleri.