A license is a contract in which the photographer grants specific rights to the client who wants to use an image taken by the photographer. The client can only use the image within the scope of the licensing agreement.
A client can obtain licensed photography by hiring a photographer to create new work which will be licensed for a specific purposes or a license can be obtained for already existing work – stock photography.
Types of Photography
People may need photography for commercial, editorial or retail purposes.
- Commercial photography is used for advertising or marketing purposes to promote or sell products, services, or ideas.
- Editorial photography is used mainly for educational or informative purposes and images may be found in newspapers and magazines, as well as in text books and educational blogs.
- Retail photography is typically commissioned or bought for the client’s own personal use. Wedding photography, family portraits, pet photography would fit within this category.
Although there is a difference between these types of photography, what the commercial, editorial, and retail photographer all have in common is ownership of their work. The copyright in the work remains with the photographer instant the image is taken. Unless there is a contract or work-for-hire relationship that says otherwise, the photographer is the owner of the image upon its creation.
A work for hire arrangement involves work prepared by an employee within the scope of their employment, or a work specially ordered or commissioned for use on its own or as part of a collection. The photographer may not hold the copyright to a photo taken while working for someone else, and in order to avoid disputes this element should be clearly addressed in the license.
Only the copyright owner will have the legal capacity to license the image to another party. The license should include confirmation that the photographer is the copyright holder, and has obtained any consent necessary for the image to be licensed. For example, if the photographer is providing shots of people for a commercial purpose, such as for an advertising campaign, he or she should have in their possession a model release form signed by the subjects being photographed. This will provide confirmation that authorisation to use their image to sell a product has been obtained.
Some key definitions
The “licensor” is the photographer or copyright holder who is granting usage rights to the client who is the “licensee”.
The “creative fee” is charged by the photographer for their efforts to manage a project successfully. It may include factors like the photographer’s experience, expertise, reputation and time spent on the project.
The “licensing fee” is the price charged by the licensor to the licensee in exchange for a grant of rights permitting the use of one or more images in a manner described in the agreement. The factors that go into determining the fee include circulation, size of reproduction, and specific image qualities.
An “exclusive license” limits the client’s use of the licensed images as well as the photographer’s ability to license the work to other users.
A “non-exclusive” license can grant the same or similar rights to multiple licensees. Unless otherwise negotiated, licenses are non-exclusive.
Most clients would prefer to get “unlimited use” of images, because it represents a very broad grant of rights that permitting use of the images across all media types for as long as the client wishes. It is not usual for clients to be granted unlimited use, however, unless they have paid a high premium for such use.
Contents of a License
The purpose of the license is that both parties can agree the scope and usage of the images, therefore, the content of a clear and concise license will usually cover the following important terms:
This section will lay out the specified use for which the client is granted permission to use the images. It may state, for example, that the use is for a magazine cover whether printed or electronic; where the image can be placed and how many times, for example, once on the front page of specified media. Other specific permissions often will include negotiated terms such as size of image, quantity, duration, region, language, and exclusivity.
These basically operate as the opposite of permissions. The license may state, for example,that the photo may not be used as a thumbnail image. One of the most important constraints will be the duration. A client may be granted permission to use the image for a specified period only. Once that period is over the license expires, and the client would need to pay the photographer an additional licensing fee in order to continue using the photo.
Whether the photographer gets a photo credit by-line is a matter for negotiation. It is normal for a photographer to request that their name accompany any image used, but not all clients will agree if the by-line runs counter to their publication policies.
All photos should be capable of being identified by file name. This is particularly so if it is the intention for the client to select only one out of number of images to license. It should be made clear that the client is not allowed to keep and use unselected images.
What should I do next?
Contact us if you would like further legal advice on obtaining licensed photography. If you are thinking of starting a photography business, or already have an established business, we would like to help to with your legal documentation. Our lawyers at You Legal will be happy to assist you in whatever way we can.
* This blog is for general guidance only. Legal advice should be sought before taking action in relation to any specific issues.