Photo Licensing: A Look at the Basics

[noisycheese]

Here is an interesting and informative article on photo licensing. It is long, so I will post only a portion of it. You can follow the link at the end to read the rest of it if you are interested.

Photo Licensing: A Look at the Basics (+ Sample License)

I've always been very detail-oriented. That might be why I get so frustrated when I hear photographers using important terminology incorrectly-- particularly when it comes to terminology that has a direct impact on their income and overall bottom line. I meet photographers who tell me they are editorial shooters when they are actually commercial photographers. I meet some who think they are commercial photographers when they are actually retail photographers. One photographer recently had the cojones to tell me, "I know I'm not really a commercial photographer, but it sounds cooler, so I go with it."

WHAT?!?

When the shock of such an intensely ridiculous statement had finally worn off, I got to thinking about how the labels we use affect not only our views of ourselves and each other, but also on our clients' opinions and expectations of us, as well as the licensing and use of our images.

Licensing Basics

Before I go any further, it's time for an important disclaimer. After 15 years in courtrooms, I traded in my briefcase for a camera bag almost ten years ago. The content of this article is made up primarily of generally accepted legal principles, but laws differ from state-to-state and country-to-country. Be sure to consult an attorney in your area for clarifications or additional advice and information.

Commercial/Editorial/Retail - Who's Who?

For starters, I don't really blame people for being confused by these terms. I do, however, think they sell themselves short by not taking the time to use them accurately, particularly when it doesn't take that much effort or research to do so. Be smarter. Learn a few definitions and point yourself in the right direction.

COMMERCIAL photography is used to sell or promote a product, service, or idea. Advertising, marketing, and promotional activities all fall into this category.

EDITORIAL photography is used primarily for journalistic or educational purposes. Images featuring people and things not licensed for commercial use can be used in newspapers, magazines (print and online), as well as text books and educational blogs.

RETAIL photography is generally commissioned or purchased for the client's own personal use (e.g., wedding photography, senior portraits, pet photography, fine art, etc.). Licensing issues do not arise as often in this category. While the photographer retains the copyright, the client's fee may include a grant of reproduction rights.

Let's take a look at an example that might help sort all of this out. If I am hired by a company to photograph an event where they are launching a new product, my photos will fall into the commercial category. The company will be using my photos to promote and sell the new product. A photographer from the local newspaper also covering the event can take the exact same photos I do, but they will be editorial in nature. The key here is that the difference is not in the content of the photos or how they were shot, but in the end use. The photojournalist and I have both been paid to cover the same event, but it is how each of our images are used that ultimately defines whether they are commercial or editorial work. You could, by extension, say the same for each of us as photographers.

The commercial, editorial, and retail photographer can all be incredibly talented-- masters of technique, composition, and capture. But each has a different set of priorities, and thus unique business practices and pricing structures. What they all have in common, however, is ownership of their work. Barring a contract or work-for-hire relationship that says otherwise, the photographer is the owner of the image upon its creation. Translation? The copyright kicks in the instant the shutter closes.

Okay-- I Have a Copyright. So What?

One thing I think we can all agree upon is that we need to protect our work. I'm not going to spend a lot of time here on the copyright aspect. Maybe another time. For now, though, suffice it to say that you hold the exclusive rights to your images from the moment you press the button on your camera. Simply holding onto a copyright, however, doesn't generate any income for your photography business. That is where licensing comes into play. Photography fees cover our time, our overhead, our experience, even our creativity. Licensing fees, on the other hand, control where and how our images can be used and in what way. Licensing your images properly creates images that can continue generating income long after the shoot is over.

What Exactly is a License & Why is it Important?

Simply put, a license is a contract in which the photographer grants specific rights to the client who wants to use the image. The client can only use the image within the scope of the agreement. That's it. Don't be fooled, though, by the simplicity of the idea. Keeping in mind that simple concepts can still be complicated minefields will help you make sure that you have all your bases covered. If licensing your images is still a new aspect of your business, be sure to talk to people who've been where you are. Benefit from their experience and expertise. Do your homework.

Obtaining the License - The Client

Clients can obtain licensed photography in two ways. First, they can hire a photographer to create new work (Assignment Photography) which will be licensed for the client's specific purposes. The second-- and less expensive-- option is for the client to obtain a license for already-existing work (Stock Photography). While assignment photography is essentially a service business in which the photographer creates something new, stock photography is more of a commodity. As most photographers already know, stock photography is pretty much dominated by a relatively small number of agencies and has a set of business strategies al its own. You can license your own stock directly to your clients, but the overwhelming majority of photographers licensing commercial or editorial photos are doing so with original work.

Important Terms - A Partial List

I've done a pretty good job in the last ten years of removing "lawyer speak" from my vocabulary, but sometimes old habits are necessary. Bear with me-- this won't take long. We've already defined the license itself, but there are a few other terms you need to know.

LICENSOR-- The photographer or copyright holder who is granting usage rights to another person or entity.

LICENSEE-- The person or entity to whom the license is granted.

CREATIVE FEE-- The creative fee is charged by the photographer for his or her efforts to bring a project to a successful completion. In addition to time spent, the creative fee may be calculated including factors like the photographer's experience, special expertise, reputation, or anything that contributes to the overall creative effort.

EXCLUSIVE LICENSE-- When granted, an exclusive license limits not only the client in their use of the licensed image(s), but also the photographer in their ability to license the work to multiple users. It's also important to note that exclusive licenses can be very broad or very specific. The license might grant the licensee exclusive rights to use a photo singly, or in any combination of a specified media, industry, territory, language, time period, product, and/or any other specific right negotiated between the licensor and licensee.

License Definition

NON-EXCLUSIVE LICENSE-- The licensor can grant the same or similar rights to multiple licensees. Unless otherwise negotiated, licenses are non-exclusive.

UNLIMITED USE-- This is pretty much exactly what it sounds like. It's a very broad grant of rights that permits the client to use the photo(s) across all media types and parameters (e.g., territory, duration, etc.).

LICENSING FEE-- This 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 prescribed in the license. The fee can-- and will-- be based on factors such as circulation, size of reproduction, and specific image qualities.

BUY OUT-- This is a very imprecise term used to describe a grant of extremely broad usage rights. It has no actual legal definition. It is an incredibly vague term and I wholeheartedly discourage anyone from engaging in a buy out. For starters, the people who are asking you for it may be under the impression that they are acquiring the copyright to the images when they are not. I'm not a huge fan of unlimited use either (unless the client is paying a premium for it), but it is preferable to a buy out. If your client is insisting on a buy out, it is imperative that you make sure they are clear on the concept.

WORK FOR HIRE-- Also known as "work made for hire," this term is defined in the U.S. Copyright Act as a work prepared by an employee within the scope of his or her employment, or a work specially ordered or commissioned for use as a contribution to a collective work. What does that mean for you? It means that you may not hold the copyright to a photo that you took while working for someone else. And if you don't own the copyright, you have no legal standing to license the work to a third party.

If you are ever in doubt regarding terminology-- either in explaining it or understanding it-- be sure to check out the Picture Licensing Universal System (PLUS). Among other resources available on their website, the glossary can be an invaluable tool in making sure everyone is on the same page.

LINK: http://www.diyphotography.net/photo-licensing-look-basics