‘What rights do Performers have in a photograph?’

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AI – ‘In a photograph, performers generally do not hold the copyright to the image itself. Under UK law (specifically the Copyright, Designs and Patents Act 1988), the photographer automatically owns the copyright as the creator of the artistic work. [1, 2, 3]

However, performers still hold significant legal protections over how their likeness, performance, and privacy are handled. [1, 2, 3, 4]

1. Performers’ Intellectual Property Rights

While a photograph is a still image, if it is captured during a live performance, the UK Government guidelines on performers’ rights provide distinct safeguards: [1, 2, 3]

  • Right against unauthorised recording: Performers have an automatic right to consent to or refuse the visual recording of their live performance. [1, 2]
  • Control over distribution: If a photograph is used to create or replicate a recording of their performance without consent, they can legally block its distribution. [1, 2]

2. Privacy Rights

A performer’s right to control a photograph often depends heavily on the setting and the purpose of the shoot: [1, 2]

  • Private and Domestic Shoots: If a performer personally commissions a photographer for private or domestic purposes (such as headshots, family photos, or private portfolios), they hold a legal Right to Privacy under UK copyright law. This allows them to prevent copies of the images from being issued to the public without permission. [1, 2, 3]
  • Public and Business Settings: If the photo is taken during a public performance or a commercially commissioned shoot for a band, there is no automatic “expectation of privacy”. [1, 2]

3. Commercial Use and Image Rights

Unlike some international jurisdictions, the UK does not have a registered “Right of Publicity” or a standalone “Image Right”. Instead, performers protect their commercial interests through specific civil laws: [1, 2, 3]

  • Passing Off: If a photographer or third party uses a performer’s photo to falsely imply that the performer endorses a specific commercial product or business, the performer can sue for “passing off”. [1, 2, 3, 4, 5]
  • Contractual Control: To manage image usage, high-profile artists and performers rely heavily on Model Releases and Media Contracts. For example, a band may stipulate in concert ticketing or press passes that photographers may only shoot the first three songs, cannot use flash, and must grant the band co-ownership or approval rights over the resulting images. [1, 2, 3, 4]

4. Restrictions on the Performer

Because the photographer owns the copyright, a performer cannot freely use the photograph for their own commercial benefit—such as on merchandise, album art, or promotional materials—without securing a licence or permission from the photographer. Posting photographer-owned images to an artist’s personal social media or business website without a licence can legally constitute copyright infringement. [1, 2, 3, 4]’