The other day, I was reading an article from the New York times of a woman who had taken Harvard University to court for ownership of photographs of an ancestor of hers. The ancestor in question was a slave and the woman had learned of the photographs existence while investigating her own family tree. Unfortunately the woman lost the case on a misunderstanding of laws governing the creation of photographs. What she failed to realized is that subjects in a photograph do not own photographs taken of them. In essence, photographs are the property of the photographer.
I learned of this issue when I myself ran into some trouble with a client who was insistent on getting my photographs for free. Her reasons would constantly change. Her first argument was that there was no written contract and therefore I had no right to charge her a fee for the photographs. But, according to copyright law, because there was no prior contract, the ownership of a photograph falls in the hands of the author, or creator. That meant the photograph was the property of the photographer. Unfortunately, without the ability to prove that she could lay claim of ownership over the photograph the client became insistent by making other claims about not having an established business. I subsequently ended the communication with that client. Take note, copyright law does not make it a requirement that you own a business to own a copyright or that you need to own a business to request financial compensation for use of your photographs.
There is one caveat. Although a photographer may be able to use a photograph as he or she sees fit, the one thing the photograph cannot be used for is advertisement. By using it for advertisement or marketing it is implying the subject or model, agrees with the use of the goods or services in the advertisement and that may not be the case. For example using the photograph of a subject in a cigarette commercial when the subject did not agree to it or even possibly opposes smoking of any kind. However, the photographer can include the photograph on his or her website and sell the photograph prints. The one way to get around this is to have the subject or model sign a model release which ensures the subject’s likeness may be used for specific purposes.
It was certainly sad, at least to me, to see the woman, Tamara Lanier, had to face the reality of copyright law. I understand her position, given the subject in the photograph was an ancestor, she felt a personal connection to the photograph. But copyright law is clear on the matter. Unless the photographer is hired, like in the case of a company has a photographer in their employment, or in a written contract with the client to have photographs taken, by default, the photographs are the property of the photographer.