Understanding the way in which copyright adheres to photographs usually starts with dispelling a common misconception. That misconception is that the subject of the photograph, i.e. the person or thing being photographed has no copyright interest in that photograph. That is not to say that the subject has no right whatsoever; under state right of publicity laws, subjects may very well have a commercial right to their likeness, or at the very least a privacy right that can be exercised to prevent the distribution or sale of of a photograph of their likeness. Rather it is the photographer as the author of the photograph that retains a copyright interest in a photograph, as it is the photographer that is responsible for making decisions as to the positioning of the subject, the lighting in the photograph, and other creative decisions that meet the originality threshold that copyright protection requires.

Often photographs will be licensed in one of three ways; for commercial purposes, to be used in connection with the sale of goods or services; for editorial purposes, to be used for journalistic or educational purposes; or retail purposes, to be bought and sold by individual consumers for personal use. The licensing fee will thus vary depending upon the type of use. Commercial uses, for example, will likely command a higher licensing fee than licenses for editorial or journalistic uses, at least in part because publication for such purposes may very well be deemed fair use by a court of competent jurisdiction. This means that a court might find that constitutional free speech requires that the use be permitted free of any copyright interest.

That said, one should be mindful of the potential for joint authorship issues to arise; simply because one person is behind the camera, and another person is in front of it does not, without more, determine who retains a copyright interest and who does not. Were a subject to make the decisions typically attributed to the photographer, such as lighting, makeup, costume, and other artistic choices, the subject of a photograph may have an argument for joint or even sole authorship. Furthermore, depending upon the context, the person behind the camera may have no copyright interest whatsoever; for example, copyright interests in films and major motion pictures are almost never assumed to rest with the camera operator. Rather, they reside with the artistic mind behind the camera work that dictates what shots will be taken and how they will be sequenced, absent an assignment or license to a major film studio or production company.

Work for hire issues may also arise, particularly where a photographer is working for another person or company and has signed a work for hire agreement. Under such agreements, the author grants his copyright interest in future work to the entity for which the author is working. Furthermore, employees of companies whose job description includes content creation in the form of photography will probably not retain a copyright interest, as their employment contract will likely operate similarly to a work for hire agreement.