Licensing and PR: How to manage relationships to protect your image

Note: I am not a lawyer, and this article is for informational purposes only. It does not constitute legal advice. Copyright law is nuanced and fact-specific. If you need legal guidance regarding copyright or image licensing, you should seek experienced counsel. Reach out and we are happy to refer you.

There are similarities between the public relations and legal professions. Both seek to protect their clients to the best of their abilities, and both have strong professional organizations that help maintain standards of ethics. Lawyers and PRs both talk about their work in terms of providing “counsel” to their clients.

There’s an important distinction, though. I think of public relations as the lead team, and legal as the back-up. Good PR is how you handle your business so that legal doesn’t have to get involved.

I mention this because one of the quickest ways for artists to find themselves in legal quagmires is with copyright infringement —when images of your work get used without your permission for purposes that you do not approve. This is where Legal and PR intersect.

It’s the wild west out there

Imagine the ideal trajectory for your career as an artist. You making work on your own, hiring your photographer, selling work out of the studio, and eventually, you show a piece in a group exhibition at a local gallery. The market shows an interest. The gallery decides to offer you a solo show. If the show sells well, they offer you another show until they decide to represent you. As your profile continues to grow and you have more shows, a larger gallery approaches you. The cycle continues — group shows, biennials, solo gallery shows, public commissions — until finally one of the biggest galleries offers to represent you.

Throughout your growth as an internationally acclaimed artist, you have had dozens of photographers photograph your work under different circumstances. Dozens of collectors have acquired your work and hang them in their homes. And you, the artist, still own the copyright of those works, presumably. But who has the right to share images of your work and under what conditions? And who has been keeping track of this?

Copyright nuances

As a general rule, if you are an artist making work in the United States, you own the copyright to the work that you create unless or until you transfer or sell those rights. However, you do not, by default, own the copyright of the images of your work. The rights to those images sit with the photographer unless they have agreed, in writing, to sign over those rights. The copyright of the work itself remains with you.

In some art-world contexts, photographers may agree in writing to transfer copyright in exchange for payment and credit. However, absent a written agreement, the photographer typically retains copyright and grants only a license.

Before you can license an image of your work, it’s important to understand if you even have the right to grant those permissions. Have the rights to those images been transferred to you from the photographer? If you hired the photographer, this is within your control at the point of signing the contract for the work. But, for museum or gallery shows, where a dealer or institutional partner has hired the photographer, have you received permission to use those images or grant that permission to others?

Protecting your image by licensing with discernment

The issue of image licensing is complex, but once you understand the basics, you can begin to map out where you have the ability to influence how images of your work appear in public.

Sit down with your gallery and ask them to walk you through their processes. Understand how they hire photographers and what agreements they use. If they have an in-house photographer, it can be quite a bit simpler.

When you have an exhibition at an institution, review your contract to better understand how they will document the show and what permissions you’re giving in advance. Keep track of all of this in your files so that you can refer to them later.

The limits of licensing

If someone wants to use images of your work — for a story or a publication, for example — they will usually reach out to your gallery to request images. It is good practice to ask for information about how the image will be used and texts that will accompany the image. For younger artists, it’s ok to be more permissive because distribution leads to greater visibility, but if there is something particularly unattractive about the opportunity, there is no problem saying, “No.” But not all “No’s” are final.

In some cases, publishers and journalists will reach out to institutions to request permission to reproduce images. I’ve even experienced a situation where a publication reached out to a press outlet that had photographed an artist’s work for a story. If your contracts with those institutions, or your negotiated arrangements with press outlets, don’t explicitly prevent them from doing so, they may be entitled to grant that permission without seeking your approval.

If you are welcoming a press outlet into your studio, it’s absolutely essential that you understand what you are giving them permission to film and what the photographer is allowed to do with those images.

I remember once having a difficult conversation with a publisher over whether or not someone they hired to photograph their story would be allowed to use those images on their own personal website. Unless you made this demand explicit, you have no control over it.

Come up with a game plan

Unless you work directly with a PR who represents you, then you have to do all of this work yourself. The art world incentives reward wide proliferation of images of your work, but only you know how you want your work to be perceived and received by the public.

Good PR is not just about getting your work seen. It is about shaping how it is seen — and ensuring that your visibility doesn’t create preventable legal risk. That work starts long before there’s a problem.