The Permission Trilogy, Part Three

Take That Picture Down

This is the final installment in a series about permission and photography. You can read the first and second parts, too. I’m no lawyer and this is not legal advice. I barely understand the rules and regulations in the U.S., much less anywhere else, so don’t do anything stupid and get thrown in a Bolivian prison.

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In an unforeseen plot twist, this final essay in my Permission Trilogy will make the exact opposite point I expected when this process began. 

I expected to write about how we have the right to show our work with very few limitations. But it turns out that simply isn’t true. We need more permission than I realized. 

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One impetus for this series was that I was tired of seeing so much misinformation online, particularly on social media, about what photographers need permission to do. And while my complaints may be with society in broad terms, it’s social media in particular that brings the idiocy directly to my door. 

On Threads, X and Reddit, it can be difficult to tell the morons from the experts.¹ Every opinion is equally valued. Wrong is no different than right. The only thing that matters is volume. Misinforming morons rule.

So you can imagine my surprise when I discovered that I myself am just such a misinforming moron. 

You see, when I began this triumvirate of photographic perspicacity, I had in mind a simple plan. First I’d outline the unquestioned legality of pointing your camera at stuff in public. Then I’d explain the unassailed precedent of pointing your camera at people in public. And finally I’d clarify how, once you’ve made some photographs, it’s utterly and completely legal to use them however you see fit (save for a few special circumstances). 

One way I was sure you could use them without anyone’s permission was in your portfolio. I’ve argued as much, loudly, on the aforementioned social media. But when I dug in to find the facts to support this stance, I learned that my long-held understanding of a photographer’s publishing rights is fundamentally incorrect. 

As Marcus Aurelius famously said, “Oopsie-daisy.” 

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The person who gets to decide how a picture gets used is the one who owns the copyright. By default, this is the person who makes the picture—with a couple of caveats. One of those caveats is if there’s an identifiable person in the image. In that case the photo cannot be used for commercial purposes without that identifiable subject’s permission. This is because in the U.S. we have the right to dictate how our likeness is used for commercial purposes.²

When a photographer shoots pictures of a model for a hat catalog, for instance, that model signs a release granting the photographer and their assignees the right to publish said images for commercial purposes. 

Another instance in which a photographer has to ask permission before publishing a picture is when they are not, in fact, the copyright holder. Yes, the copyright belongs to the photographer by default the moment the shutter snaps shut.³ But sometimes we transfer (sell) that copyright to a client (ideally for a significant fee) who, having purchased the copyright, can now determine where, when and how the image is used. This includes limitations on sharing the image in the photographer’s portfolio unless such self-promotion was explicitly allowed in the contract.  

Sometimes another entity actually owns a photographer’s copyright by default. If a photographer works full-time for an employer they are likely operating under a “work for hire” contract. Work made for hire automatically transfers copyright to the employer. Sometimes assignment photographers encounter unscrupulous clients proffering such work-made-for-hire contracts too. If you sign one, the photographs you make on that assignment belong—copyright included—to the client. 

So it is generally safe to assume that the person who takes the picture holds the copyright unless they have contractually signed away those rights. This holds true even if they do it with someone else’s camera, as long as they are not a monkey. 

Even when we’re the copyright owner, though, we still sometimes need someone else’s permission before using our own photos in our portfolios. Even if internet loudmouths like me insist otherwise. 

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When I got my start as a professional photographer it was at the tail end of the film era. Back at the turn of the century when you had an image you wanted to show off, you’d print it out and put it in your portfolio. A portfolio was a glorified photo album, an expensive binder full of prints. When you wanted to show your best work in an effort to convince someone to hire you, you’d sit down in front of them and open it up. Or you’d drop it off at their office—by courier if you’re cool—so they could look at it on their own time. 

It would be difficult to misconstrue that portfolio process as publishing. One single book shared one at a time (or two or three at a time if you’re killing it) would be hard to argue as public display. It’s a portfolio, fundamentally private and small scale. 

That distinction was key because it meant the rules were slightly different for portfolios. You could put any of your pictures in your printed portfolio without the permission of the people in those pictures, precisely because you weren’t “publishing” them. The portfolio was private. 

And but so here comes young me being taught these rules. “You can put any picture in your portfolio, even without permission of the people in those pictures.” Fine. Got it. I’ll do it this way for the next 25 years and never give it a second thought. 

This was long settled, I was taught. There’d been legal precedent, I had been assured. None of this is an issue, my mentors reiterated. So off I went, showing anything and everything in my portfolio. They were right, of course. But what they didn’t predict was that soon portfolios wouldn’t be printed on paper, they’d be published online. Published online. [Italics used to indicate foreshadowing - Ed.]

I continued with this approach when my printed portfolio gave way to a website, and when that website evolved into a social media feed. It’s all still a portfolio, I thought, so those same old rules still apply. 

But those old rules didn’t actually care if the images were shown “in a portfolio.” The rules only cared if the images were displayed publicly in a commercial fashion. If they were to be public—published—for a commercial purpose that required the express permission of anyone who appeared in the photographs. 

It turns out, no matter how loudly dummies like me may proclaim otherwise, there are no special rules about portfolio use. No special carve out in copyright law, no legal precedent ensuring we are free to promote our photo businesses with the work we make, regardless of who might appear in it. There is only the same standard there ever was: is the usage commercial?

I couldn’t find any precedent because none exists. I even asked a copyright attorney who came into the studio for a headshot. 

“Unfortunately there’s not a single case that can tell you if you can use images in a portfolio,” he told me. Another I.P. lawyer showed up a few days later so I asked her. Same answer. I was, slowly, beginning to get the picture. 

Because no such exemptions are made for portfolio use, best practice is to include a self-promotion stipulation in our contracts. I gather from a bit more research that lots of wedding photographers do it this way because of the inherently personal nature of the work they do. It’s probably standard in my corporate photography niche, too, but somehow I never caught on. 

Again, I reiterate: “Whoops.”

Such contractual call outs are standard operating procedure in the U.K. becaue the law there explicitly stipulates that photographers hired for “domestic purposes” must ask permission before showing images online. The subject’s right to privacy trumps the photographer’s “right” to self promotion. 

I reached out to English photographer Paul Clarke who, like me, is a commercial photographer and longtime photography writer.

“We have a specific clause in our main piece of legislation in this area,” Clarke told me, “the 1988 Copyright, Designs & Patents Act. Section 85 doesn't affect copyright as such, instead it places extra privacy safeguards on privately commissioned material. Not many clients and not many photographers over here are that aware of it. As with most stuff around image use and rights, it's more noise than action; I bet there's never been a single court case actually pursued, let alone won, of this nature. But this section gives a sense of comfort to clients. And very often with photography, it's the feelings that count more than the material realities.”

A few days later he emailed again. 

“I did some research,” he wrote, “and it looks like there's never been a successful s85 case brought (and only a couple of attempts). So it's simply not something that ever arises in practice with 'normal' clients. There are two UK cases, both involving well-known figures, where s85 cases were attempted. Neither succeeded.”

The law may sound stringent when it comes to photographers promoting their work, but in practice the culture is pretty forgiving. Which, coincidentally, I’d say is the same situation we have here in the U.S. It’s certainly how I’ve been operating, anyway. There’s a lot of leeway given to photographers trying to promote our work. Sure, some clients ask us not to share their images, but I’ve never had an issue complying with such requests. 

I will confess, though, that while I freely comply I’m secretly mad about it. Because it’s my right (or so I thought) to show my work in order to get more of it. But knowing what I know now, I understand that our portrait subjects and lifestyle models and brides and grooms and whoever else appears in our photographs are doing us a real solid by not causing a stink when they see their faces in our “portfolios.” 

Still, I think it’s important we understand there is inherent risk in too-casual treatment of the law. You never know when seemingly acceptable rule bending will cross paths with a lawyered up angry guy. This is especially true if your “portfolio” is less like the old-school album and more like twenty-first century marketing material.

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It’s no stretch to imagine it being successfully argued in court that your portfolio is still a portfolio even when it’s a website. So long as it’s not a commercial site in which you’re trying to sell anything like, oh I don’t know, your professional photography services. Or prints.⁴

Once your website becomes a sales site you’ve left the world of portfolios and entered the realm of “commercial use.” That means any images published there would be subject to the same legalities as, say, the images used in a hat catalog. Could anything come of such a lawsuit? As much as I would like to think not, legally speaking it’s a distinct possibility. The letter of the law is clear, regardless of the intent. 

Case in point. I know of a Substack writer who recently settled an expensive copyright lawsuit because he published someone else’s images in an editorial context—or so he thought. The lawyers argued that because his webpage also advertised the author’s workshops and other for-profit endeavors, the usage was not in fact editorial but commercial. Courts have been pretty clear: it’s “commerce” that matters, not good intent. 

If you read my (outstanding, if I do say so) copyright piece last summer, you may recall that the main issue that helped photographer Lynn Goldsmith triumph over the Andy Warhol estate in copyright court was not whether Warhol had sufficiently “transformed” Goldsmith’s photograph, but rather that the Warhol Estate ventured from the art world into commercial territory when it licensed Warhol’s take on Goldsmith’s image for use as a magazine illustration. By crossing back into the same commercial territory as the original photographer, Warhol’s estate violated Goldsmith’s copyright in a way that it hadn’t when it was selling prints in a fine art context.⁵ Courts have a long history of scrutinizing the commercial application of a copyrighted work when determining liability. 

What all this means is, it could present a real problem to find yourself using an image commercially that you thought you were just displaying in your portfolio. If that portfolio page on your website includes a “Hire Me” button or similar commercial language, you can be sure a judge would more likely consider such image use equally commercial. The takeaway, if you ask me, is to ensure your portfolio page really is just a portfolio page. 

And so we come to the end of this ternion, but not with the triumphant blast of horns and fiery rhetoric about the unassailable nature of photographers’ rights I had hoped for. Instead we lurch to a whimpering halt with a bit of a reality check. We photographers aren’t as special as I’ve always thought we are. The U.S. copyright system is not set up to ensure we’re tended to every step of the way. It’s up to us to follow the rules too—or at least to know them well enough so when we break them strategically we’re not surprised by the consequences of listening to some misinformed moron on the internet. 

Speaking of which, be sure to smash that like and subscribe button. And tune in next week when I fight Mike Tyson. 

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Postscript

As I consider the broader context of this trilogy, today’s essay serves as a reminder of the importance of grace. The subject of our portrait doesn’t get his feathers ruffled when we use his picture on our website. Likewise we don’t get mad when his colleague asks us not to display their photo. When we go out in public we have the right to take pictures of practically anything, practically anyone, practically anywhere. But still, it’s not great policy to march around knowing you’re right and behaving like an a-hole. As one astute commenter wrote on my last post, “Just because you can doesn’t mean you should.” This is good advice for all sorts of things, but especially as it pertains to permission in photography. Give grace, get grace. Let’s hope. 

1. We need a signifier to distinguish the experts from the merely loud. Just as there should be a sarcasm font (comic sans) I believe there should also be an online identifier that separates the trustworthy from the un. One might argue the blue checkmark already serves half that function, so perhaps the actual experts could get something like a gold star, or maybe a bigger, bolder font?

2. Remember, editorial use is not commercial. So things like newspapers and magazines are largely exempt from this. Likely Art + Math too, as I’m not trying to sell you anything… yet! 

3. “When it’s created, it’s copyrighted.” One of my favorite sayings.

4. Actually prints might be okay, because now you’re venturing into the world of art and there are plenty of special carve outs in copyright for artists. An artist exhibiting and selling their work on their website would have theoretically greater protection than a commercial photographer doing the same. Filled with tricky gray areas, copyright law is. 

5. Licensing art prints to the tune of hundreds of thousands of dollars, I should mention. Those remain perfectly legal, the courts ruled. But the commercial usage—for hundreds of dollars—is what violated the photographer’s copyright. Art is given tremendous leeway in the world of copyright. Commerce is not.