Any company working with customers/clients needs to understand their legal responsibility to the people they are engaging with and the contract they enter into when a commercial transaction takes place. I think that all of us would accept and expect that. A lack of understanding or a disregard for such professional practice would reflect poorly on that company and inform our choice to interact with them.

Photographers have customers and clients and the same responsibility. When they are commissioned they enter into a contract which they need to understand and comply with. However, a recent situation I was told about suggests that this is not always the case. The response to me mentioning this on Threads further confirmed the level of misunderstanding and anger concerning image usage.

Magazines and newspapers today rely upon brands to send them free press release photographs to illustrate their articles. This is so prevalent that some magazines commission few if any photographs, ask any long term editorial photographer if this is the case and I know they will confirm my understanding and the impact it has had on their commissioned revenue. Where once they worked for the editorial client now they work directly for the brand and in doing so engage in a contract where usage is agreed as part of their fee.

A good client will be open and honest concerning usage and fair when agreeing the fee but it is always up to the photographer to either accept or reject that contract. The editorial client has no input in this. They accept the photographs in good faith to publish them and in essence provide free marketing and promotion of the brand.

Therefore when my friend, a magazine editor received a portrait image from a person they were running a feature on as a free to use press image they published it. The image was a 300 dpi, hi-res file suitable for printing and no photographer credit was supplied. The photographer saw the published image and immediately sent an angry email to the magazine demanding to know why they had published one of his images without his permission.

The editor politely replied and gave the information of who had supplied the image suggesting that the photographer speak with their client to discuss the issue. Instead they replied by sending an invoice for £1,000.00 as a fee for publishing two photographs when only one had been published. The magazine took legal advice that confirmed what they believed and I know. The contract was between the client and the photographer and therefore if the photographer wished to be recompensed he should speak with them. The magazine was not at fault.

This is not a subjective opinion but an objective fact. It is not a discussion point. I do not know if the photographer had spoken with the client but my guess is that the client made a mistake thinking they could just send out the image as part of commissioning the photographer. I do know that the photographer is young, just starting out and perhaps unaware of contract law.

If you still disagree with this situation let me give you another example. Imagine that someone stole a car and sold it on to someone who knew it was stolen. You then buy the car thinking that the seller is legitimate. Are you part of the crime? Or have you just failed to do enough due diligence? I think we can all agree that the latter is the case.

It is up to the photographer as to the contract they sign, but it is their responsibility to have one in place to protect them and to inform the client of the rules of usage. Whatever you may think or want without one you are taking a risk with your work and by responding unprofessionaly your reputation.

The client accepted responsibility and has compensated the photographer. They have also written to the publisher to apologize for the error of sending the images without permission. The photographer has not apologized to the magazine. In my opinion they should. The client has learnt an expensive lesson and the photographer has made no friends on the magazine. I can only guess as to whether or not the client will commission them again. The photographer may have been paid this time but through an agrresive approach they could have impacted negatively on their future earnings. They were not wrong in asking for payment, they just asked the wrong people in the wrong way.

Dr. Grant Scott is the founder/curator of United Nations of Photography, a Senior Lecturer and Subject Co-ordinator: Under Graduate and Post-Graduate Photography at Oxford Brookes University, Oxford, a working photographer, documentary filmmaker, BBC Radio contributor and the author of At Home With the Makers of Style (Thames & Hudson 2006), Professional Photography: The New Global Landscape Explained (Routledge 2014), The Essential Student Guide to Professional Photography (Routledge 2015), New Ways of Seeing: The Democratic Language of Photography (Routledge 2019) and What Does Photography Mean to You? (Bluecoat 2020). 

His film Do Not Bend: The Photographic Life of Bill Jay was first screened in 2018 www.donotbendfilm.com and he is the presenter of the A Photographic Life and In Search of Bill Jay podcasts.

© Grant Scott 2023