Wine Not Wine & Trademarks: Understanding Ownership of Winery Photographs

Photographs capture the beauty of lush vineyard estates, sun-kissed landscapes, and rustic cellars. If shared, photographs expose that beauty far beyond the immediate physical space. From promotional materials and marketing campaigns to social media posts and website galleries, beautiful images play an important role in shaping the story and allure of vineyards and wineries worldwide.

Beauty aside, issues of ownership and rights are important for the vineyard or winery to consider. This blog post discusses the ownership issue surrounding photographs taken of vineyards and wineries, empowering their owners to proceed with greater care and confidence.

Unveiling the Lens: Who Owns Winery Photographs?

Imagine four scenarios involving Dinosaur Winery (“Dinosaur”).

First, Dinosaur’s director of social media and marketing—a full time employee of Dinosaur—regularly takes photos of Dinosaur’s premises and products. This employee regularly posts the photographs she takes on social media platforms and includes the photographs in other promotional materials.

Second, Dinosaur hires an external photographer for a series of photoshoots to heighten the quality of Dinosaur photographs available to be used in post cards and a 25th anniversary book. Can you believe Dinosaur has been around that long?

Third, one of Dinosaur’s wine club members—a “Dino Wino” if you will—visits the winery, takes several photographs and posts them on his Instagram story.

Fourth, in further celebration of its 25th Anniversary, Dinosaur commissions (i.e., hires) an artist to paint a post-impressionist style painting of Dinosaur’s famous façade. The artist took photos of the façade prior to lifting her brush to produce the painting.

Who do you think owns the copyrights associated with each of the photographs? The discussion below will provide a foundation to help you answer this question. Answers to the four questions above are provided at the end of this blog post.

Ownership in Photographic Copyrights

Several people and parties might be involved in a scenario wherein photographs are taken at a winery (e.g., marketing staff, owners, managers, bar tenders, guests, freelance photographers, public relations personnel, advertising firms, Meta, etc.). At a high level, two figures are most important in the analysis: the photographer and the business (e.g., the vineyard/winery).

1. The Photographer
The creator of an image (e.g., the photographer) often initially owns the copyright associated with the image that he creates. Things can become complicated with multiple creators/authors and in other jurisdictions. However, in the United States, when a photographer takes a photograph (e.g., a snapshot of a winery's panoramic vista or cellar ambiance), he automatically becomes the legal owner of the copyright associated with that photograph. There are exceptions if the photographer is an employee of the winery, or the photographer is subject to a contract that specifies that someone else will own the copyright.

An exception could exist for the employee, however, if the employee took the photograph with his own camera outside of his role with the company. For example, if the winery’s official lavender gardener (who does not take photographs in the ordinary course of his work for the winery) visits the winery during his off time with a group of friends and takes a photo with his friends in front of the giant bowl of corks inside of the winery, there is a good chance that the employee owns the copyright in that situation.

Consider the following common arrangement. Wineries, among many businesses, sometimes hire a photographer to take photos of their property and wines. Perhaps the photographs are intended for marketing materials. Maybe they are for nostalgia. A lot of businesses mistakenly assume that because the business hired the contractor to take the photographs and agreed to pay the contractor for that work, that the business owns the copyrights associated with those photographs. Unfortunately, that is not the case unless a contract expressly states that the business will own the copyrights.

2. The Winery
The winery, on the other hand, owns copyrights associated with photographs taken by the winery’s employees in the scope of their employment, and third-parties who sign contracts that expressly state that the winery owns the copyrights.

There is a term in copyright law known as “implied license.” An implied license does not change ownership. However, it means that in some situations, for example, the winery might have permission to use the photographs for a limited purpose without infringing on the photographer’s copyrights. In the scenario above involving the Dinosaur hiring the photographer to take photos to be used in post cards and the 25th Anniversary Book, the winery is likely to have permission to use the photos for those two purposes. Exceeding those uses (e.g., aprons, framed paintings and prints, social media posts, etc.) could amount to copyright infringement.

Understanding Rights and Responsibilities

Copyright ownership amounts to a number of rights—far exceeding the scope of this blog post. In short, the owner has the ability to say who can and cannot use (along with how and when) the copyrighted image (e.g., photograph). A copyright license, by contrast, is a permission. If the copyright owner grants a license to someone else (a “licensee”), the licensee can use the copyrighted image without fear of infringing if she does so in compliance with the terms of the copyright license.

It would be prudent for vineyards, wineries, and other businesses to execute clearly written agreements concerning ownership and licensing when working with photographers, employees, and others who might take photographs for the former’s benefit. The agreement should specify who owns the copyright. A winery would want its external photographers to sign agreements that clearly state that the winery owns the copyrights associated with the photographs. A winery would probably want a similar provision from its own employees. Perhaps the agreement with the employee will specify that all copyrights for any and all photographs taken of the winery or its products, etc. will be owned by the winery (not just the photographs taken in the scope of employment). Ideally, these agreements will be in place proactively rather than retroactively.

Perhaps the agreement will give the photographer certain permissions. For example, maybe the employee is given permission to share the photographs on the employee social media profiles.

Similarly, maybe the agreement will give the external photographer permission to include the photograph(s) in the external photographer’s portfolio. The agreement might contain additional restrictions. For example, maybe the photographer cannot create derivative works or use the photograph(s) in such a way that disparages the winery.

Conclusion: Capturing the Essence, Protecting the Essence

In the world of vineyards and wineries, photographs preserve moments and memories for generations to come. As custodians of these visual narratives, wineries must navigate the issues of ownership rights and usage permissions with diligence and foresight. By understanding the nuances of ownership of photograph copyrights, fostering transparent communication, and adhering to best practices, these businesses can continue to celebrate and share the essence of their estates while safeguarding the integrity of their visual identity. Let each photograph taken of the winery be a testament to its timeless beauty, captured and preserved with reverence and respect.

If you would like to discuss copyright issues, including ownership and licensing, facing your vineyard, winery, or other business, with an experienced IP lawyer, schedule a consultation here.

Answers to the Four Scenarios Above:

In the first scenario, Dinosaur’s director of social media and marketing is a full-time employee of Dinosaur, who regularly takes photos of Dinosaur’s premises and products. Based on these facts, Dinosaur likely owns the copyrights associated with the photographs.

In the second scenario, Dinosaur hires an external photographer for a series of photoshoots. Unless there is a contract that expressly states that Dinosaur owns these copyrights, the photographer (not an employee) owns the copyrights. However, Dinosaur likely has an implied license (i.e., permission) to use the photographs in post cards and the 25th anniversary book. There is a good chance that Dinosaur cannot use the photographs in the 50th anniversary book unless Dinosaur obtains separate permission or otherwise acquires the copyrights from the photographer.

In the third scenario, one of Dinosaur’s wine club members takes several photographs. There are no facts here that the wine club member is an employee or that a contract providing for Dinosaur’s ownership of the copyrights. As a result, the wine club member owns the copyrights.

Fourth, in further celebration of its 25th Anniversary, Dinosaur commissions (i.e., hires) an artist to paint a post-impressionist style painting of Dinosaur’s famous façade. The artist took photos of the façade prior to lifting her brush to produce the painting. There are at least two copyrightable works in this scenario: the photographs and the painting. The word “commission” does not imply anything further about the arrangement. Hopefully, Dinosaur and the artist executed a contract, and agreed that Dinosaur owns the copyrights associated with the photographs and the painting (or copyrights associated with all works the artist creates in connection with this project).