If you buy a photo of your horse, do you have the right to reproduce or reuse that image? Probably not.
When your horse executes a perfect run, you hope for two things: that it comes in the finals of the biggest, richest event of the season and that someone caught a moment of it on camera from the best angle possible. If all of this happens at once, it can make a horse a superstar.
The cliché about a picture being worth a thousand words speaks deeply to horse people. When a dynamic photo of an equine athlete at the apex of his career is printed in a magazine or newspaper, the owner’s phone usually starts ringing with offers to buy him or breed to him.
Regardless of the caliber of horse, however, almost everyone who has ever barrel raced has swung by the photographer’s booth or visited his or her Web site after an event. There, you find the image you think shows you and your horse to the best advantage, pick the size photo you want and money changes hands. Easy, right?
This deceptively simple transaction, if not handled correctly, can be fraught with misunderstanding, possibly leading to hard feelings, letters from attorneys and even court cases. The core question is, who owns the photograph you just bought? The answer can be found in the copyright.
Mine or Yours?
Copyright means just what the word says, the legal right to reproduce something. If someone creates a piece of art—writes a book, makes a movie, pens a song or takes a photograph—that person owns the right to make copies of it until they transfer that right to someone else.
Milton C. Toby is an attorney and chair of the equine division at Midway College in Kentucky. One of his previous careers was equine photographer for The Blood-Horse magazine.
While he spoke freely about copyright law for this article, he cautioned that nothing herein constitutes legal advice, and that legal questions should be addressed to an attorney
“‘Photograph’ and ‘image’ are not interchangeable terms, although nearly everyone uses them that way,” says Toby. “When I take a photograph of your horse at an event, I am recording an image of the horse on film, or digitally, or however. At the moment of creation/recording of the image, copyright law recognizes me as the ‘author’ of the image, and copyright protection starts without any other action on my part.”
Misunderstandings occur when a photographer doesn’t explain this to a customer. The photographer often assumes people understand copyright, while horse owners may see a photo as a commodity that they buy. Once they own a saddle, they can do what they want with it. Why not the same thing with a photograph?
But unless you’re going to take that saddle apart, replicate all its parts and create a new one, you can’t reproduce a saddle. With today’s technology, you can reproduce a photo—quite easily, in fact. However, you are not legally entitled to do so if you don’t own the copyright.
“If I have not sold any of the rights in the image, all you can do is frame the photograph and hang it on your wall,” Toby says. “You cannot legally make copies of the photograph. You can give it away and you can sell the original without infringing on my copyright, but you can’t scan the photograph, make a batch of duplicates and sell them.”
Primo Morales, a performance horse photographer who regularly works at the major shows, compares illegally reproducing photos to illegally splitting straws from a breeding season.
“Say you’ve got a horse that I want to breed to, and I buy the straws,” Morales says. “Maybe I give half of them to my neighbor, or to four or five people, but I’m only going to pay you for one breeding. That’s no different than with my pictures.”
Many photographers, including Dick and Barb Waltenberry, and John O’Hara, list their copyright policy on their Web sites.
“By law, copyright belongs to the maker of an image,” it says on the Waltenberrys’ site. “You own the print that you purchased, but we own the usage rights.”
O’Hara writes on his Web site: “Photos may not be copied, photocopied, downloaded or reproduced in any manner without my written permission. Any copyright infringement will require me to pursue the matter fully.”
O’Hara registers all of his photos annually with the United States Copyright Office, which gives him even more protection under the law.
“There is implied copyright and registered copyright,” O’Hara explains. “With implied copyright, you have the burden of the proof of ownership and must absorb your own legal expenses. With registered copyright, you have proof of ownership.”
With a registered copyright, O’Hara says, the person a photographer is suing for copyright infringement has the burden of paying the photographer’s legal expenses if the court rules for the photographer.
Of course, no one wants a situation to go that far.
“You can get gray hair and go to your death worrying about it,” O’Hara says.
O’Hara, as part of doing business, protects his copyright. If he sees one of his photos used without permission, he sends the person a letter outlining the law and what the usage costs, as well as including pages from the federal copyright law.
In addition to illegal copying costing photographers money, it can hurt their reputations, especially when that copy is poor.
“When the reproduction is poor and it’s got your name on it, that’s what I object to,” Barb Waltenberry says.
Photos for Advertising
Photographers make their money from selling their photos, whether it’s to the exhibitor or to a magazine or Web site for advertising. That’s usually when misunderstanding can flare into arguments.
“The tricky part is when you give the original photograph to a third party,” Toby says, “a magazine for editorial or advertising use, for example.”
If the magazine just keeps the photograph, you haven’t violated copyright laws. But, of course, the magazine wants to reproduce it. Once that reproduction occurs, so does copyright infringement—unless the photographer has granted the magazine permission to use the image.
“I should be entitled to payment for additional use,” Toby says. “Magazines and ad agencies should insist on some proof that a person submitting a photograph for an ad has the legal right to authorize reproduction of the image.”
Photographers handle this in a variety of ways, from ignoring it to putting language on documents that accompany their photos and on their Web sites explaining their policies.
“If a customer purchases an 8-by-10 photo, I allow them it use it in any magazine, any time they want,” Morales says. “They can also scan them for use on their Web site.”
Morales draws the line at people blowing up that 8-by-10 photo to larger prints and banners. After all, he sells those larger prints himself.
“If I see that at a big show at a booth, I approach them and let them know that it’s a copyrighted print,” he says. “If I see it, it will be measured, and you’ll be billed accordingly.”
Other photographers have different policies. If a stallion switches ranches or owners, the new people involved may have to pay an additional fee to use the same photo in their advertising. It is the horse owners’ or ranches’ responsibility to see that they have permission.
“Part of the problem, in my opinion,” Toby says, “is that for years photographers didn’t explain copyright law to clients and then didn’t complain when the images showed up in magazines or elsewhere. This created a culture endorsing unlimited use of otherwise copyrighted material without additional compensation.”
Toby also notes that the Internet seems to have fostered a more easygoing approach to photo use. However, copyright laws remain the same, whether it’s a traditional photograph or a digital photo on the Web.
“I can post the photograph of your horse on the Internet without giving up any of the rights I have in the image,” Toby says. “A person who downloads the image and makes copies for sale or for use in an ad is infringing my copyright.”
Barb Waltenberry prefers to send digital images directly to the publication or ad agency that is creating the ad, rather than sending it to the individual. In that way, she can avoid the temptation on an owner’s part to indiscriminately reproduce photos from that digital file.
Photographers may also send a client a low-resolution image for a Web site, one that will reproduce well on the Internet but won’t make a good hard-copy photo. They may charge a higher price to someone who wants to buy a high-resolution digital image and then include language that gives the customer the right to reproduce as many photographs from the image as they like.
Another step a photographer might take is to embed the word “proof” across the photo posted on the Web site. That tells the potential customer that this is not a finished product, nor is it legal to download.
But it’s My Horse
Advertising that uses equine photos to promote a product rather than advertise a horse can also lead to misunderstandings. For example, a feed or tack company may want to use a particularly dynamic barrel racing turn in its advertising campaign. From a copyright standpoint, most photographers will negotiate a usage fee in these cases.
Beyond copyright lies the nebulous area of whose horse it is and who is riding it. Well-known riders want to control the use of their images in corporate advertising, especially if they have signed agreements with certain companies. Someone with an agreement with one clothing company isn’t going to want to see a photograph of themselves in an ad for a competitor of that company.
Toby calls this the right of publicity, or the right to control how your image is used. That differs from copyright, but can become intertwined when you or your horse is photographed.
Usually, people photographed at a public event, such as a race, cannot object to photos of themselves used in a publication reporting on the show. In most cases, people are thrilled that their exploits receive recognition anyway.
Photographer John Brasseaux has one corporate client who solves the problems of copyright and right of publicity by hiring him to photograph only riders who have agreements in place with that company. O’Hara offers customers a discount on photos if they will sign a model agreement, allowing him to sell such photos to third parties.
The Waltenberrys’ policy requires usage fees for third-party advertising. Barb Waltenberry says that she tries to keep those fees reasonable so that their regular customers won’t lose any potential exposure. Riders whose likenesses are used in a saddle company ad may get a lot of publicity from those ads, which, in turn, helps their businesses.
Brasseaux has informed potential corporate customers that if they want to use his photos, they will not only have to make arrangements with him, they’ll have to contact the riders and possibly the owners of the horses.
Like many disagreements in life, avoiding copyright difficulties comes down to communication. If customers understand up front what a photographer’s policies are and abide by them, they can escape misunderstandings and hard feelings. And the photographer is likely to work that much harder to get the perfect photo of that horse.
As Primo Morales says, “A great picture will make a horse a lot of money.”
Will a Photo Credit Do?
One misconception photographers battle is the idea that payment is not necessary when reproducing a photo as long as a photo credit appears.
Under the law, if you want to reproduce a photo you need the permission of the copyright owner. That permission could cost money, be free, or be given for just a photo credit. You could even barter the permission, as long as both you and the photographer agree to the terms.
Photographers make their reputations through their work, and thus want a photo credit to run with their photos. They might even go so far as to embed their company name into the photo to ensure proper credit. Some photographers will charge more if a photo credit is not included, while others will refuse to allow usage that does not include a photo credit.