Is it Legal? Outtakes From Client Work on Social Media
Q: Can I post outtakes from client work on Instagram? I took them with my smartphone, not the camera I used on set, so are they even part of the shoot?
A: If you work as a freelance photographer and are not employed by a company, you own all the work you create. The client hiring you is granted rights to use the photographs you make, but you retain the copyright. How the client hiring you can use the photographs created on assignment is controlled by the terms of your agreement. Having an agreement in writing that clearly explains what each of you can do with the photographs avoids misunderstandings that can arise from an oral agreement. If the hiring party requests any exclusive rights, the agreement must be in writing to be valid.
If a client wants to own the copyright and requests an assignment of all rights, you would not be able to use the photographs, even on
Instagram, unless you receive an exception for personal use, including your portfolio and self-promotion. Whether to assign all rights is a business decision, but you should understand that you lose the right to use your photos in the future without an agreement. You should request the right to use any photograph taken on assignment for self-promotion, in all forms of media.
Because Instagram, as well as other forms of social media, is a form of self-promotion and marketing, it functions as a digital portfolio, just as much as any personal website. Often photographers are hired just because of their social media following. Some clients will want the photographs taken on assignment posted on your social media account to create interest about a story. This may be more frequent for editorial assignments where the publisher benefits from increased interest in a story ahead of time. Many agreements with publishers provide that a publisher will receive exclusive publishing rights for a limited period of time, and after this embargo period you have rights to publish the images in any way you wish. If you want to use the photographs from the shoot on your own social media channels during the embargo period, you should request to do this in the publishing agreement. You may be asked to include language saying that the images were first published by the assigning publication.
When working on an advertising assignment, confidentiality and exclusivity may be a priority to the client, and the client may not want any photographs posted on your social media accounts until the media campaign has been launched. You should carefully review the contract and, in particular, the “grant of rights” clause to make sure you can post your photographs on your own social media channel after the work is made public. Some advertising contracts contain very broad “assignment of rights” clauses, which will restrict the use of all photographs taken on the shoot and could include photographs taken on a smartphone.
Some contracts may require you to ask permission before posting the work on your personal website or social media channels. Typically clients will grant permission once the campaign is launched, but may want to reserve the right in a contract to have you seek permission first. Once any work is part of the public campaign, you can always link to that work and identify your contribution.
You don’t need to worry about Instagram owning photographs you post on your account. The terms of service you agree to by joining contain a “grant of rights” clause that permits the social media platform to use your images as part of its service, which usually includes the ability for you and others to share and like images and other content. It does not give these platforms the right to sublicense your images for any profit. So enjoy posting on your account—just make sure your client does not have any limited restrictions before the campaign goes live.
Nancy E. Wolff is a partner at Cowan, DeBaets, Abrahams & Sheppard, LLP. Her practice focuses on intellectual property and digital media law
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