Selling exclusive image rights

Good question, but I suspect it is one of those cases where the answer will only come from a court action. The law can only be a broad brush and the case itself is then left to the interpretation and emotions of the jury.

I suspect that a client would be buying the picture of an emotive element (and I use 'emotive' in the broadest possible sense) of the image. So suppose you sell it to a company who feel it embodies the spirit of their product (or their client's product), and they want that spirit for unique use. If you sell the virtually identical image to someone else you are effectively selling what the company thought they had bought exclusive rights to.

There is an infamous copyright case of the picture of a 'red bus' on London Bridge, used on a biscuit tin. The case founded not on the fact the picture was identical to another one (it wasn't ) but on the artistic elements behind it, and the consideration that the biscuit manufacturer seen an image they liked, then contracted a photographer to imitate it so they could get essentially the same picture cheaper than paying the photographer of the picture they were imitating (if that makes sense). In other words they were setting out for the start to get round copyright laws. I suspect you would have the same issue in your scenario.

CAUTION: the above case was in UK. Who knows how an American, French or Australian court would end up.

jolyonralph said:

But legally, if I am selling ONE image to a client, what rights does that offer them to prevent me selling almost identical images to someone else?

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IMHO, when you sell exclusive rights to an "image", you sell the "image concept", not the physical frame or file only. Probably you could write a contract to make the latter happen, but maybe then your career may suffer

Yet, sometimes the same concept may be sold under some different presentations - i.e. Gursky's 99cent exists in two version, a standalone image, and a diptych (and other works as well), but they are usually identifiable as different artworks from the same underlying concept, the problem in "almost identical" is the value of "almost"

After all, even Leonardo painted two version of his Virgins of the Rocks...

Many variations on this theme. Say, two photographers standing nearly shoulder to shoulder capture nearly identical images using identical camera, lenses, and settings. Can they both have a legitimate copyright to the captured image?

jolyonralph said:

...But legally, if I am selling ONE image to a client, what rights does that offer them to prevent me selling almost identical images to someone else?

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Because you are not selling one image to a client.

In the real world, with real clients, it doesn't work that way.

If the client hired you to shoot something, you are under contract (whether written or implied) to produce a specific work for that client. They have the right to your work. They aren't buying an individual frame, they are paying for your time and expertise to produce works which they can choose from. Just because they happen to have chosen a different frame, doesn't mean they have given up the rights to the rest of the shoot. If you produced it while working for them, they have a claim to it. You may be able to negotiate a contract that allows you to retain some rights, but that must be negotiated with the client, who has the first claim on your work.

If the client happens to be purchasing a photograph that you took when you were not under contract with them, then the terms of that sale will determine what your options are. If they are making a one-time non-exclusive purchase, then of course you have the right to sell the image again. That's how stock photography works. If they want exclusive rights to the photo, that would have to be spelled out in the agreement.

The truth is, however, that the kind of hair-splitting you are talking about seldom happens in the real world. An ethical photographer, after having been commissioned to produce a work, would never consider offering nearly identical images to other clients without the express permission of the original client. And, a client who sees an image you took and wants to use it, isn't going to expect exclusivity unless they specifically negotiate it.

BeenThere said:

Many variations on this theme. Say, two photographers standing nearly shoulder to shoulder capture nearly identical images using identical camera, lenses, and settings. Can they both have a legitimate copyright to the captured image?

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That what happens, I guess, at most sport events, or the like. Guess also those photos cannot command very high prices, exactly because they are far from being "unique".

Anyway, there are many different needs in buying exclusive rights. One may be, for example, you need the right to reproduce it at will, maybe transformed in some way, or made part of a larger work, without paying royalties or have issues about its usage outside the photographer's intent.

Another to ensure uniqueness, or limited diffusion. It can thereby matter more or less if similar (but not identical) photos are also available and sold. As usual, it's better not to cheat on customers, and maybe warn there about how many similar images exist, and let them the choice about how many to buy rights for.

I'm new to photography, so I don't have much experience. Frankly speaking, I haen't thought about selling image rights. I should say, this is a great question and has to be viewed from a legislative way, I guess.