What is a Photographer’s Licensing Agreement?
The definition of a photography licensing agreement is simple. It is an agreement between the photographer and a third party that allows the licensee to use a particular photograph for a set period of time, for a specific purpose. In this way, the licensee obtains some of the rights that the photographer has, under copyright law. Other agreements deal with physical rights to a photograph, like the right to buy a photograph framed and ready for display, but licensing agreements deal with intellectual property rights.
There are four basic concepts of a photography licensing agreement:
The agreement itself can be very narrow or broad, in terms of the basic concepts discussed above. It is up to the parties to determine how broad or narrow the agreement will be . In this way, simple photography licensing agreements allow the parties to determine the usage of the photograph. Depending on the nature of the work or the expectations of the budget, a broad or narrow agreement may be the most appropriate.
Licensing agreements are very common in the photography industry, and one of the most common agreements that a photographer enters into, because they create certainty within the contractual relationship. In this way, these agreements allow the parties to understand the uses to which the photograph may be put. These licensing agreements can deal with both website photos, commercial photographs, and personal photographs. At its base level, this is the purpose of a photography licensing agreement.
Essential Components of a Photographer’s Licensing Agreement
A good licensing agreement for a photograph should contain the following terms:
License Type
A licensing agreement should contain a description of the type of license the owner is granting. Terms to use that person to describe the type of license may include:
The owner and the person licensing (yourself) should state the type of license being granted by marking the appropriate box in the agreement.
Duration
The Agreement should clearly state how long the license lasts and when the license is considered terminated. For example, the term can last for one-time or multiple times. The duration can also be for six months, twelve months or until the specific purpose is fulfilled.
Exclusivity
An Agreement can also be exclusive or non-exclusive, like the one shown. For example, if the owner of the image grants an exclusive license, another party is not allowed to use the image for the same time period or purpose as the exclusive licensee.
Territory
The Agreement should state where the licensee is permitted to use the image. For example, it can provide that the licensee can use the image "for any lawful purpose available" within the United States only and not outside of the United States. An example of a territory is North America to be used for promotional and marketing materials.
Types of Photographers’ Licenses
There are many different types of photography licenses. Using a photos without permission is known as "infringement." Copyright infringement can serve as a basis for statutory damages and attorney’s fees in a case involving published works. There are three common types of copyright licenses used by photographers.
First, we have a "rights managed license" which is a license that allows the photographer to have the exclusive right to the photograph, but permits the parties to agree upon the permitted uses. Rights managed licenses are the most common, and allow the user to pay only for the rights that that user requires.
Second, there is a "royalty free license." Generally, a royalty-free license is a license that pays a one-time fee for use of a photograph, and then permits any use of that photograph at no additional charge. For example, if the photographer sells a royalty-free photo for $1000, anyone with that same royalty-free license can use it for whatever purpose they would like. Royalty free licenses are generally the same as the more common "buy out licenses" where the copyright owner sells all of the copyright in the photograph.
Third, we have "creative commons licenses." These licenses are used by photographers that want to distribute their photographs under flexible copyright arrangements, and are site specific licenses that the user must agree to when approving uploading an image or reselling an image.
Licenses should be used to protect your copyrights and maximize profits. Your license should provide the user with the exclusive rights that a user needs, while excluding those rights that the user does not require. When drafting licenses, you should always consider what type of rights the user actually needs. For example, if the user only needs to use the restricted rights for an advertisement, it will be important to consider whether (i) the user needs to use the entire photograph or whether they can crop the photograph, (ii) the licensed photograph can be used to create derivative works (e.g. the user can add to the original photograph and bundle the additional material together into another product), and (iii) whether the photograph can be used for other uses in addition to its use as an advertisement (i.e. taxonomies and CRUD operations in Evernote).
Licenses arise in many contexts, and you should draft them to provide the necessary rights to the user, while still retaining the rights that you want to keep as a copyright owner.
How to Write a Photographer’s Licensing Agreement
When drafting a photography licensing agreement, the goal should be to clearly express the business deal that has been reached by the parties. Both the photographer and client should understand, once the contract is signed, which of them will exercise control over the creative work, how the work can be used, for how long, and who will benefit from any licensing income.
As with any type of licensing agreement, there are some key issues that should be dealt with, regardless of the circumstances: In practical terms, the agreement should include the following sections, each of which should be clearly titled: This is not a definitive list of what every licensing agreement should include but it is a helpful starting point. You may wish to include additional sections (or exclude sections) depending on the deal reached, the negotiation process, the parties, and/or the work that is subject to the contract.
The following are some practical pointers that should help you when drafting and finalizing a photography licensing agreement: Try to be consistent elsewhere in the licensing agreement by using the same terms for the parties. There’s no reason not to treat multiple parties equally in the agreement: "Client 2" and "Client 3," for example, might be renamed "Licensee 1" and "Licensee 2" so that you don’t have to repeat "Client 1, 2 and 3" throughout the agreement. Sometimes photographs are altered or manipulated by the client, an artist or even someone third-party after they have been created. A photographer might work on a picture and then pass it on to a client who creates a collage or color corrects it. If you come up with a solution to deal with this situation, you should insert text into your licensing agreement that will protect you from misuse should the clients or third-parties use an unaltered version of the image.
If the intention of the contract is to assign the rights more or less completely to the client, the contract’s wording will be much simpler and much shorter. No confusion will arise and the photographer will need to exert very little control over how the photographs are used.
Negotiating a Photography License
When it comes to photography licensing agreements, striking a balance between the photographer’s rights and the client’s needs is crucial. Thus, negotiating the terms of use should be regarded as an essential part of the engagement process. A photographer needs to be aware of not only the value that they bring to the table, but also the potential downside of agreeing to the terms and pricing structure that may be presented. At the same time, the client needs to know that their interests will be served by agreeing to these terms and paying the price that is put forth. There are various aspects of a photography licensing agreement that need to be negotiated and some of the most critical terms are discussed here.
A photographer should ensure that the amount of compensation is commensurate with the expected use of the images. An image that may be used exclusively for internal purposes should not usually command the same valuation as an image that will be used in advertising or published online. Compensation should also be based on the expected duration of use, for example, if a customer is expecting to keep a stock of images for a very long-term basis, they should anticipate paying a higher price than what they may otherwise pay for a few months’ subscription to a stock photography website.
The scope and duration of use should be limited and, depending on the business relationship that the photographer has with their client, the photographer may also want to limit the use of competent images to a single project. Or the photographer may be willing to allow the client to re-use the images in future projects in exchange for additional compensation .
The licensing agreement should also address whether the client has the right to assign, relicense or grant sublicenses to third parties with respect to the use of the images. It is also advisable for the photographer to be notified in the event that the rights in the images are ceded to a third party by way of novation.
A client will usually want to include confidentiality clauses in the licensing agreement as it is probable that the client will be privy to some confidential information about the projects for which the images are ultimately used. The photographer will also have to consider what recourse they would have if I contracted third party breaches the confidentiality clause.
A licensing agreement may also stipulate how claims by third parties or any proceedings will be dealt with. The burden of indemnity is usually passed onto the client provided that the liability is really connected to the work done by the photographer or the use of the images.
It is pertinent to appreciate that negotiations should not be solely focused on price, as a good deal does not necessarily translate into having to settle for a lower fee. It may actually mean charging a higher fee for less use, thus ensuring that the photographer’s value of the images is higher for the client and that their portfolio receives a boost.
Ultimately, both the client and the photographer should take care to acknowledge that the key to successful negotiations lies in being able to offer something of value to the other party, the professional advantage that both parties seek and the mutual interests of the parties are what will sustain them.
Legal Issues with Photographers’ Licensing Agreements
One of the most crucial aspects to consider when entering into any photography licensing agreement is your very own rights to the photos being licensed. If you truly do own, or have the rights to those photos, an agreement can be extremely beneficial whether you are a photographer, or the end user of an entity commissioning a photographic entity. If not, these rights may need to be obtained.
A copyright is an exclusive legal right that applies to a literary, artistic, or musical work such as a photograph, and provides license to the owner that they alone can publish, sell, or distribute the work, as well as obtain royalties, unless others are specifically given the rights through a licensing arrangement. In many cases, the photographer of the work has the rights to the work, and may license them to a publishing company, retailer, or other third party. Copyright infringement occurs through unauthorized commercial use of such art. In most cases, the artist will retain the copyright, but there can be exceptions. The photographer is the owner of the copyright, but they do not have to register the copyright with the United States Copyright Office for there to be protection. Registration can take a more formal step of registering the copy, and can give the photographer legal advantages in case of potential litigation. It is important for both parties entering into an agreement that encompasses licensing of photographs to have clear understanding of their rights to the items being licensed, as well as obtaining written permission licensing any right to the content from the original photographer or copyright owner.
Photographers’ Licensing Mistakes
Clients frequently fail to review the amount of compensation offered to the photographer. A modest fee for submitting a single image to an ad campaign or catalog may be deemed offensive by an experienced photographer assuming more than 10% will be used for his or her work regardless of the few lines of text attached to the image. Often it is difficult to make a market comparison since photographers typically don’t publish prices and are known to barter with clients.
From the photographer’s perspective clients frequently offer the photographer work-for-hire agreements without realizing that the compensation offered does not include licensing fees. The photographer will typically see this as representing an attempt by the client to re-use the images as often as they would like without the payment of additional compensation.
Surprisingly , many photographers use the same photograph for clients in different industries causing the licensee to question the exclusivity of the agreement. In this situation, the client should specify all potential uses and the license agreement should list any past use by the photographer of photographs that may be considered for license by the photographer.
Inadvertent infringement by clients that assume license requirements can be avoided by using clearly marked watermarked images of unlicensed photographs or at least requiring a license agreement to be signed prior to licensing.