Q&A: How to Register Copyrights to Photos Taken by Spouses

Bosque Yellow Tree SharpQ. I have been registering my images with the U.S. Copyright Office on a regular basis for some time.  Since my wife is shooting more often now, I would like to register her images under the name of my photography business so that both her images and mine are registered in one application. Is it possible for a proprietorship to hold a copyright? Do we have to complete 2 applications – one for her and one for me thereby doubling the cost? Both of our names are on the business checking account and the taxes are filed jointly.

A. A business (including a sole proprietorship) may register copyrights, but there are some requirements and some concerns. There are two ways to go about this: (1) either the photos are shot as a “work made for hire”; or (2) your wife transfers the copyrights to the sole proprietorship.

A photographer owns the copyright for images that they create, unless the creation of those images falls into the “work-made-for-hire” category. A work made for hire relationship is created in two situations: (1) the photographer is an employee hired to photograph for the employer—an example would be a photojournalist who is an employee of a newspaper; or (2) the photographer is hired to provide photo graphs for collective works or compilations and signs a written agreement that specifically states that the work is to be considered a work made for hire.

For (1), some states allow a spouse to be part owner of a sole proprietorship. If the spouse is shooting for the sole proprietorship, then the business owns the copyrights. If your spouse is not part owner of the sole proprietorship, then the spouse can shoot the photos pursuant to a “work made for hire” agreement. The agreement must be in writing and must be made prior to shooting.

Note that if your spouse cannot be part owner of the proprietorship pursuant to state restrictions, then you may want to change the form of a business to a partnership, LLC, or corporation. There are pros and cons to each organization type. Check my blog entry for your state’s resources on its organizations.

When registering, you have to give the “Author’s Name.” There, you give either an individual name or an organization name, but not both. An author is a person who actually created the contribution, unless the contribution was “a work made for hire” in which case the employer is the author. Therefore, if (1) applies, the business is the “author.”

When registering the copyrights, you also must identify the copyright claimant(s) in the work. The claimant must own the copyright in all the authorship covered by this registration. The author is the original copyright claimant or the claimant may be a person or organization to whom copyright has been transferred. To be named as a claimant by means of a transfer, a person or organization must own all rights under U.S. copyright law. If the spouse did not take the shots for the business either as a part owner or pursuant to a “work made for hire” agreement, then she must follow step (2) and transfer the copyrights. The transfer must be in writing. Note, however, that in the hopefully-unlikely event of divorce or other falling out between the parties, you’ll likely have to divide the assets of the business, including the copyrights.

Check Photo Attorney on Lynda.com, in the Lynda.com Article Center, and on Twitter!