The basic position: the photographer owns the copyright

Under copyright law in most jurisdictions, including Malaysia, the United Kingdom, and across the European Union, copyright in a photograph vests automatically in the person who took it. No registration is required. No notice needs to be affixed. The moment the shutter clicks and a sufficiently original image is captured, copyright is born and it belongs to the photographer.

This seems straightforward enough, and in many cases it is. A professional photographer commissioned to shoot a product campaign owns the copyright in the resulting images unless those rights are expressly assigned to the client in writing. A journalist who captures a newsworthy moment owns the copyright in that image even if it is subsequently published by a media organisation that employs them, subject to any contractual arrangements to the contrary. A tourist who photographs a landmark with their smartphone is the copyright owner of that image.

The complications arise quickly, however, once we begin to ask more nuanced questions. What happens when multiple parties have a claim to an image? What are the rights of the subjects who appear in a photograph? And in an era of AI-generated imagery and social media ubiquity, what does ownership even mean in practice?

Commissioned photographs: a common source of dispute

One of the most frequent areas of confusion involves commissioned photography. Clients who pay for photographs often assume, quite reasonably from a commercial standpoint, that paying for the shoot means owning the resulting images. In many jurisdictions, however, this assumption is legally incorrect unless the contract says otherwise.

In Malaysia, under the Copyright Act 1987, where a photograph is commissioned for private or domestic purposes, the person commissioning the work is the first owner of the copyright. However, where the commission is for commercial purposes, the default position is less clear and the outcome will depend heavily on the terms of any written agreement between the parties. This is precisely the kind of ambiguity that leads to disputes, particularly when relationships between clients and photographers break down.

The practical lesson for businesses is consistent and clear: always address copyright ownership expressly in any contract involving photography. Whether you are commissioning a brand photoshoot, licensing images from a stock library, or engaging a social media content creator, the agreement should specify who owns the copyright, what licence is granted to each party, and under what circumstances the images may be used, modified, or sublicensed.

The subject in the frame: personality rights and privacy

Copyright in a photograph is only one dimension of the legal picture. The rights of the people who appear in photographs raise a separate and increasingly significant set of considerations. Even where a photographer owns the copyright in an image, the use of that image may be restricted by the personality rights, privacy rights, or data protection rights of the individuals depicted.

In Malaysia, there is no standalone personality rights statute, but the common law tort of passing off, provisions under the Personal Data Protection Act 2010, and the general principles of equity can all be engaged where a person’s image is used commercially without their consent. The position is more developed in jurisdictions such as the United States, where the right of publicity is well-established, and in Germany, where the right to one’s own image is constitutionally protected.

For brands and marketers, the implication is practical: obtaining a release from individuals who appear in commercial photographs is not merely good practice, it is a legal necessity. A release should specify the scope of permitted use, the territories in which the image may be deployed, the duration of the licence, and whether the image may be altered or combined with other content. Failing to obtain adequate releases is one of the most common and costly mistakes made by businesses in the digital marketing space.

Social media and the illusion of free content

The prevalence of images on social media platforms has created a widespread and dangerous misconception: that publicly visible means freely usable. It does not. An image posted on Instagram, however accessible to the public, remains the copyright property of the person who posted it. Downloading and reposting it, using it in a marketing campaign, or embedding it in a commercial website without the copyright owner’s permission is an infringement, regardless of whether credit is given or the use is considered flattering.

Platforms such as Instagram and Facebook grant the platform itself a broad licence to use uploaded content, but they do not grant that licence to other users. The terms of service that users agree to when uploading photographs do not strip those users of their copyright; they merely grant the platform certain rights. Third parties who wish to use an image found on a social media platform must seek permission from the copyright owner directly.

This is an area where enforcement is increasing. Photographers, agencies, and rights management organisations are becoming increasingly sophisticated in their use of image recognition technology to identify unauthorised uses of photographs online, and the number of copyright infringement claims arising from social media usage continues to rise.

AI and the frontier question

Perhaps the most unsettled question in copyright law today is what happens to photographs in the context of artificial intelligence. Two distinct issues arise. The first is whether photographs used to train AI systems without the permission of their copyright owners constitute infringement. The second is who, if anyone, owns the copyright in an AI-generated image that mimics the style or composition of a real photographer’s work.

On the first question, litigation is ongoing in multiple jurisdictions and the law remains unsettled. On the second, most jurisdictions currently hold that copyright requires human authorship, meaning that a purely AI-generated image may not attract copyright protection at all. The implications for photographers and visual content creators are significant and the legal landscape will continue to evolve rapidly in the years ahead.

Conclusion

The photograph may be the most democratised art form in human history, yet the legal questions surrounding who owns it, who may use it, and on what terms remain anything but simple. As the volume of visual content continues to grow and the technologies used to create, distribute, and repurpose images become ever more sophisticated, the importance of understanding copyright in photography has never been greater.

In a world where everyone has a camera and the internet never forgets, knowing whose photo it is could make all the difference.

For further enquiries or advice, please contact us at kass@kass.asia for expert guidance.