For an employee carrying out photography in the course of theirr employment, copyright of the work will belong to the employer unless agreed otherwise. This may apply even if the employee uses their own camera, and shoots outside normal working hours.

For a freelance working for a client, copyright will belong to the photographer, not the client, unless agreed otherwise. Despite client expectations this applies to commissioned work where the client provides a brief, pays a fee, pays expenses incurred and even the cost of equipment hire.

That is the simple and straightforward position described by the 1988 Copyright Designs and Patents Act. Unfortunately it has become muddied by market forces and opportunism.

For employees, it is not unheard of for employers to demand ownership of all photos taken whilst employed. EPUK knows of one instance where an agency photographer employee was told by their employer that work she had shot out of hours for her own portfolio were their property, including her family snaps. Check your contract of employment carefully!

For freelances, what precisely constitutes employment can be an issue. There is an argument that a contracted freelance who works shifts is employed for the purposes of copyright despite being self-employed in tax and employment terms. The test appears to be whether the photographer determines their own hours of work and is free to decline any given assignment.

A much more common problem is the imposition of rights-grabbing contracts by commissioning clients. A copyright buyout ought to command far higher fees than that payable
for first use because it represents higher value to both parties. Whilst the law allows assignment of copyright to the client, the arrangement ought to be equitably negotiated not coerced.  Large clients have far too much market power for this to happen and photographers fears of losing work have only encouraged demands for ever greater rights for less money. The outcome is that many large publishing clients now expect exactly the same rights that they would obtain from employees, but with none of the costs of equipment, workspace, computers, software, pensions schemes, holiday and sick pay. The compliant freelance bears the costs and likely soon disappears under a mountain of accumulating debt on the fees and terms available.

The solution here is to be very careful about what you agree to, and if possible to require clients to agree to your terms and conditions.