In this article we are going to discuss the rights to use or not a photograph. This applies to rights as in the United Kingdom, though other Countries may have similar rights, there may be important differences elsewhere. We’ll also specifically be considering the issues and rights surrounding photographs taken of cosplayers, predominantly at comic con events but also on ‘stand alone’ photo shoots.
A photographer takes a photograph, in public, who owns that photograph? Who has the rights to use, or not, that photograph? – A simple question yes? Not necessarily so:
This is one of those things where lots of people think that they know but actually many don’t fully understand the potential complexities of this issue and, most of the time, don’t get things exactly right.
In the United Kingdom, when a photographer takes a photograph, the law states, that in the majority of circumstances that photographer then owns the copyright of that photograph, they can use that photograph in certain ways and they can, in general, dictate how others do or do not have any rights to use that photograph.
However, it isn’t entirely as straightforward as that and there are some nuances that should be understood so we’ll consider a number of typical ‘scenarios’ around comic con/cosplay photography.
A photographer stops a cosplayer at a comic con event and asks if it is OK if they take a photograph, they then take one or more photos of the cosplayer:
As long as the photographer is not being employed, as part of their ordinary job, to take the photos, then the photographer then owns the copyright to these photos. If they are being employed, then it is likely their employer would own the copyright.
In general, whether within the event ‘hall’ or outside, legally speaking this is considered ‘public’, it may well be private property but it has public access so the first thing to clear up is that there can be no legal expectation of ‘privacy’ on the part of the cosplayer. The photographer does not strictly have to ask permission to take someone’s photograph, but it is only polite, and good manners, to do so. Many events now also include the requirement to ‘ask’ before taking someone’s photograph as part of the event’s entry terms and conditions, so if a photographer doesn’t ask, though they aren’t breaking any laws, they may well breach the event’s terms and conditions, so they could potentially be reported to the event and ejected. Many events also include in the terms and conditions that it is to be expected that you will be photographed, so you are implicitly giving your consent to be photographed by buying a ticket for the event.
A photographer can not, in fact, do what they like with the photograph, although they own the copyright, there are actually some restrictions as to how they use the image.
They can use the image as part of their portfolio either in print or on a website, or social media page.
They can ‘publish’ the image on a blog, website or social media in terms of ‘documenting’ the event or similar.
They can produce prints of the image, exhibit these prints as part of an organised exhibition.
They can produce prints of the image and sell those prints, online, in a shop, or on a stall, as long as those prints are sold as the photographer’s work.
They can sell limited image usage rights for editorial use only, that is for a news report, online or in print, documenting the event or similar, or, for instance in an article on the photographer or their photography. They can sell these rights directly or via a third party ‘stock image site’ but use must be restricted to ‘editorial use only’ – They do NOT need specific consent from any subjects to do this.
They can use the image to advertise their own photographic services.
They can NOT use the image in any way or form to belittle, poke fun at or otherwise cause distress to the person(s) featuring in the image, nor can anyone who purchases editorial image rights use the image in this way.
They can NOT sell usage rights for any 3rd party advertising whether that be for goods or services without the specific written consent of the person(s) in the image.
In almost all circumstances the EVENT where the image was taken can also use the image in conjunction with advertising the event or future events, or in an editorial manner in an article about the event, without additional specific permission from either the photographer or the person(s) in the image as this is a condition in the terms and conditions of entry to which all parties have agreed by entering the event.
In this particular scenario, of a random encounter at an event, though the cosplayer has been asked and given permission for the photographer to take their photo, the cosplayer does NOT automatically have any rights to use the image at all. They can’t even post it on social media without the permission of the photographer, though it is good grace and only polite for the photographer to happily agree to this, it is then only good manners for the cosplayer to properly credit the photographer when they do post the image. The cosplayer needs specific permission for EVERY use of the image, so if they want to post it on, say, facebook and instagram, they need to be clear on that when asking for permission. If a cosplayer does use/post the image without permission, the photographer has the right to ask for it to be removed. The cosplayer/person(s) in the image do NOT have the right to in any way edit the image without the express permission of the photographer, this includes applying ‘insta’ or other filters, though if the photographer has given permission for the image to be posted on instagram, they are implicitly agreeing for it to be cropped to the instagram image format, care should be taken though not to do this in such a way as to remove any watermark or copyright mark on the image unless the photographer has agreed to this, and/or full credit is given in text accompanying the image.
The cosplayer/person(s) in the image do NOT have the right to make prints of the image, nor to then sell those prints, UNLESS they have the specific written permission of the photographer. Where the subject of the image is commercially exploiting the image in this way, the photographer can pursue the subject for restitution, through the courts if need be, as this is classed as copyright theft. The cosplayer/person doing this may find themselves having to pay a potentially hefty ‘licence fee’ whether or not they have actually made any money from the commercial activity. This also includes/covers providing the image to a magazine for use in an article on the cosplayer, use in a calendar, whether a charity calendar or not etc. The cosplayer/subject should ALWAYS seek specific permission from the photographer to use the image in ANY way if the image was taken as a result of a ‘random’ encounter at an event, regardless of whether permission was given to take the image.
ALL of the above also applies to the case where a photographer has taken a ‘general’ shot of the con/event, without seeking the permission of anyone recognisable in the photograph.
This scenario though doesn’t cover everything or every case and in particular there is a common scenario that changes things significantly.
As opposed to a ‘random’ encounter where a photographer stops a cosplayer and asks to take their photo as detailed above, instead a photographer and one or more cosplayers have pre-arranged to meet up and take photos at a con/event.
Although many would consider this intrinsically similar to the first scenario, it is different in a number of key, important ways, that significantly change the way image rights apply to any photos taken. Legally speaking, as soon as a photographer and a ‘subject’ have agreed to meet up at a specific place on a certain date at a particular time for the purpose of ‘creating’ a photograph, a contract can be said to have been formed, even where no money is changing hands as may be the case for a ‘Time for’ (TF) photo shoot, or as in this case, at a con where charging for ‘casual’ photography is usually expressly prohibited by the entry terms and conditions. This ‘contract’ doesn’t need to be formally defined in writing, it can be said to exist, whether things have been discussed via email, via messenger, via phone or in person. Rather than simply a photographer ‘documenting’ what they see at an event, this instead becomes a ‘collaborative’ venture with the aim to ‘produce’ one or more photographs.
In terms of the photographer’s rights there isn’t much difference, they still own the copyright (though now with some potential caveats) they can still use the images for their portfolio, in print or online, they can still post them on social media or a blog, they can still make prints and exhibit those prints or they can sell the prints online or physically etc. The photographer should though, now, as a matter of course, credit the cosplayer (and anyone else involved in the creative aspect of the photograph, e.g. the costume designer/maker if not the cosplayer) wherever the image is used.
The key difference is that now, because of the collaborative nature of the ‘shoot’ and the effective ‘contract’ formed for the shoot, the cosplayer/subject in the photograph also DOES now have some rights to use the photographs from the shoot, without the express additional/specific permission from the photographer.
The cosplayer (subject of the photo) CAN use the photo for their portfolio, whether in print or online, on a website or social media. They CAN post the image on social media/ a web blog, they CAN provide the image to a magazine for an editorial article on the cosplayer.
In addition, the photographer now MUST provide images from the shoot to the cosplayer, within a reasonable time period, if the photographer fails to provide or make available any images then potentially they could be held in breach of contract, though in practice taking any kind of formal action is unlikely to be worth the cost.
As before though, the cosplayer can probably NOT commercially exploit the images, through producing and selling prints for instance without the express prior permission of the photographer but this has the potential to be a ‘muddy’ or ‘grey’ area. It is though certainly safest to ask permission.
An arranged shoot such as this becomes very similar to a stand alone photoshoot arranged at a studio or at a specific location away from an event, and should be treated as such a shoot would be.
There are further complications with cosplay in particular as it could be argued that the costume the cosplayer is wearing forms a particularly major element of the resulting photograph. It could be then argued under UK copyright law that as such, the cosplayer DOES own the rights to a portion of the copyright of the resultant image. This isn’t automatically the case and would have to be decided on a case by case basis so a cosplayer can’t automatically claim copyright rights but for a particularly detailed/involved costume that forms the main focus of the image, where the cosplayer has entirely created that costume, then there may be an argument to be made. This is less likely to apply in the case of the first scenario illustrated of a random encounter where the photograph is much more likely to be considered a simple ‘documenting’ of the event, with the costume not the main design element of the photograph, than in a pre-planned shoot where the costume has been discussed prior to the shoot.
Usually though this won’t be any form of issue as long as the photographer is reasonable in granting requested usage rights (such as selling prints) to the cosplayer when asked. It is something though that photographers should be aware of.
In summary, the rights that a photographer has to use the image, and the rights a cosplayer/the subject of a photograph have to use the image, depend on the exact circumstances of the taking of the image. The two most common ‘comic con’/event scenarios have been discussed but there could easily be different circumstances where different rules result. In short, if the shoot can at all be considered a pre-planned collaborative effort, then all involved in that effort DO have certain (though not limitless) photo usage rights, a photographer automatically has certain photo usage rights (though again not limitless) in all circumstances (other than where they take the photo as part of their regular employment, or where the copyright ownership of the image has been purchased) and it is likely that the comic con/event organiser will automatically have certain limited photo usage rights to any photo taken at that particular comic con/event.
Lastly a bit about me, I have been a full time photographer, earning my living from my photography since 2009. I have worked in fashion, editorial, commercial and performance photography as well as general portraiture and am widely published around the World. I have exhibited at major exhibitions in London and elsewhere. I have set up and run a model agency and provided my photographic services to a wide range of companies and Government.
Written by Geekzania