Freelancers photographers and ownership – who owns your lookbook?
Freelancers, photographers and ownership – who owns your look-book?
Holding the intellectual property rights in your look-book provides you with the exclusive right to use, reproduce, control and profit from the use of that creative work. However, it’s important to bear in mind that when a photographer takes the photos that form your look-book, without a written agreement to the contrary, they could automatically become the owner of the copyright in those photos – which means they hold all the rights!
A copyright owner has the exclusive right to use, reproduce, sell or license the copyright work; and
Copyright protection is free and automatic and happens without the need for registration.
It’s therefore important to have a written agreement in place with the photographer and any other freelancers who work to produce the look-book which determines who holds the copyright in this work:
Ownership of copyright in photographic images:
There are exceptions to the general rule that a photographer holds the copyright in the images they take – relevant factors include whether the photographer is employed, the purpose for the photograph is taken and of course prior agreement between the parties;
Your written agreement with the photographer should assign you copyright ownership in the images they take for you and your look-book, or otherwise provide you with a licence to use those images for the purposes you intend in exchange for the photographer’s agreed fee;
Where you own the copyright in the images, the photographer may want to maintain the right to use the images as part of their work portfolio – the extent to which they may use the images is up to you and the photographer to agree and should be clearly stated in the written agreement between you;
Do not assume you can do whatever you want with the photos without it being in the contract terms – even if you own the copyright in the photos, the photographer still retains certain rights which protects the artistic integrity of their work, so if you have specific purposes in mind, make sure these are covered in your agreement;
Consider if your look-book is for your website only? Or to be printed as a book or catalogue? Will images be used in print or online advertisements, public display billboards, in magazines, and/or social media? Unless you are to own the copyright in the images, all purposes should be covered in your agreement.
The stylist – do they have any intellectual property in the images?
If you choose to hire a stylist, they can be an important contributor in the production of a fashion image. The stylist may have the biggest input into the imagery, however, unless agreed otherwise this shouldn’t affect the intellectual property rights in the photos themselves.
You need the model’s permission to use their image in your look-book and to the extent that the images will be published. A separate agreement should be put in place with any models that you use, providing you with a release to use their images for all of these agreed purposes.
It is usual to expect that the stylist, model, make-up artist and hairdresser to all want the right to use the images in their portfolio and social media.
Publishing look-book images on social media:
Remember that often when you are posting on Facebook, Instagram or Tumblr it grants those platforms some license to use the image/s, so you need to ensure you are entitled to do this, based on the agreement(s) you have in place with the contributors to your look-book;
Those permissions do not extend to third parties.
Protecting your designs that are presented in the look-book:
Two and three dimensional product designs can be protected as a registered design. This protects the visual appearance of the product, but not the way it works. You as the owner have the exclusive right to use, sell or license the registered design. However, you can only register in relation to designs which have not become public (so you need to turn your mind to this before you start marketing and selling your product).
- If the visual design of your clothing is unique it can be registered which gives you protection for the visual appearance of the product (not its feel, material or function);
- Your design must be new and distinctive – it cannot be the same or similar to designs already produced or sketched;
- It is advisable to register your design so that you can take legal action against a competitor who copies your product;
- If you have publicly disclosed your designs in a fashion show, magazine, website or in your look-book prior to registration you may have lost your ability to protect your designs; and
- Registration initially protects your design for five years from the date your application is filed, and you can renew for a further five or ten years.
Protecting your designs if you have already published them in your look-book:
Designs are already automatically protected by copyright but you may also wish considering to apply for publication protection. This doesn’t give you any rights in respect to your design, it does prevent others from obtaining certification.
If you would like help negotiating agreements with photographers and freelancers, or to register a design or other intellectual property right, speak to Sinclair + May – we would be happy to help.
This is general advice only. Liability limited by a scheme approved under Professional Standards Legislation.
Published Jan 8, 2019Go back