Photographs and films can involve more than copyright

A restaurant commissions a photographer to capture a lively evening. The photographer wants to show the images in a portfolio. The restaurant wants to use them in advertisements. A guest later recognizes herself in a promotion. Everyone is looking at the same image, but they are asking different questions.

Start with copyright. A photograph is protected the moment it is taken, and the person who takes it is its author and first owner. 1 Two things change who the author is. If the photographer is an employee shooting as part of the job, the employer is the author. 1 If the photographer is commissioned, the photo is a work made for hire only when it is made for one of the uses the statute lists (a contribution to a collective work, part of a film or other audiovisual work, a translation, a supplementary work, a compilation, an instructional text, a test or its answers, or an atlas) and both sides sign a written agreement saying it is a work made for hire. 52 Event photos for a restaurant's website are not on that list, so the photographer owns them until they sign a written transfer. 2 The guest gains no copyright by appearing in the picture, and the restaurant's copyright, if it gets one, does not give it the right to use her face in an ad. Those are the next two questions.

The commission should explain the intended uses

Write the uses down before the shoot. List each one you expect: the restaurant's own website and social accounts, the franchise network, a partner who wants to reuse the images, a national advertising campaign, edits and crops, and the photographer's portfolio.

Paying for the shoot and receiving the files does not move the copyright. Owning a copy of a work is separate from owning the copyright in it. 27 So choose one of two arrangements and put it in writing:

• A license. The photographer keeps the copyright and gives the restaurant permission for the listed uses. A non-exclusive permission does not legally need a written agreement, but write it down anyway so nobody has to remember later what was agreed. 7
• A transfer. The restaurant becomes the owner of all the rights or of specific ones. A transfer is valid only in a writing signed by the photographer. 2 Rights can be split and owned separately, so the restaurant can take exclusive advertising rights while the photographer keeps the rest. 27 If the photographer transfers everything, write a license back for portfolio use into the same agreement.

For freelancers on a film crew and staff photographers, see who owns work made by employees and freelancers.

The people in the image have their own context

Copyright does not answer whether you may use a person's face to sell something. State law does. New York is a clear example: using a living person's name, portrait, picture, likeness or voice for advertising or trade without their written consent, obtained first, is a misdemeanor, and for a minor the written consent must come from a parent or guardian. 3 The person can sue in the New York Supreme Court to stop the use and for damages, and a jury may add exemplary damages if the use was knowing. 4 The exceptions are narrow. One lets a photographer display samples of their work at their studio until the subject objects in writing. 4

For the restaurant, a photo presented as a guest's endorsement is plainly an advertising use. A guest who smiled at the camera has not given written consent to appear in an ad. Before any recognizable person goes into an ad or promotion:

1. Get a signed release from that person, or from a parent or guardian for a child. 3
2. Name the uses in the release: the campaign, social posts, franchise materials, and any sensitive context such as a health, dating or alcohol promotion.
3. Store the signed release with the image it covers.

If someone objects to an ad that already ran, or sends a demand letter, have a lawyer who handles right-of-publicity claims in that state answer it before you reply. For faces, voices and digital replicas in more depth, read faces and voices are not just another asset.

Look at the rest of the frame too

A film or photo can contain other people's works: music, a painting on the wall, a television program playing in the background, someone else's footage. The owner of each work holds its own exclusive rights to copy it, adapt it, distribute it, and display or perform it publicly. 5 Operating the camera gives you none of those rights.

Two limits matter most:

• Buildings. You may photograph a constructed building that stands in or is ordinarily visible from a public place, and distribute and display those pictures; the architect's copyright does not stop that. 5
• Fair use. Courts weigh four factors: the purpose and character of the use, including whether it is commercial; the nature of the work; how much of it you use; and the effect on the market for the original. 5 A painting shown so you can criticize it and a track laid under a promotional video are different uses: criticism is one of the purposes the statute names, and the commercial nature of a use counts in the first factor. 5 Read how fair use works in the United States before relying on it.

The cheapest fix happens before you shoot: take the painting off the wall, turn off the television, and use music you have a license for. You can only exercise a work's exclusive rights with the owner's permission, unless a limitation such as fair use applies. 7

Keep the permission connected to the image

For each image or clip, keep four things together: the file, the commission agreement or license, any signed releases, and a short note of the uses allowed. Name the files so they match the record. "These are cleared" is not a record.

Register the photographs you would defend. For a U.S. work you cannot file an infringement suit until the Copyright Office has registered or refused your application, and registering before the infringement starts or within three months of publication keeps statutory damages and attorney's fees available. 7 You can register one photograph on the Standard Application, or up to 750 photographs by the same author in one group application, with separate options for published and unpublished photographs. 61 In a published group, all the photographs must share one author and one claimant and must have been published in the same calendar year. 8 Showing a photograph publicly does not by itself publish it. 1 Check the current filing fees on the Copyright Office fee page. 9

The restaurant can then choose an image for a new campaign knowing whose work it is, what use was agreed, and whether the people in it signed up for that kind of use. The photograph stays expressive and inviting, and everyone can work with it confidently.