Licensing Terms for Photography

A long post about some general licensing terms a professional photographer needs to know.

Although licensing affects pricing, this post has little to do with pricing photography.

These terms are mostly for corporate photographers. Licensing terms for retail photography may be different. Advertising photography will often have more exact terms concerning specific types of usage. Book publishing usually has terms that deal with edition and revision rights, language rights, electronic rights and location rights.

 

The obligatory but important disclaimer: I am not a lawyer but I have photographed many lawyers. The following is intended for your general information. It is foolish to think that any of the following is absolutely true or totally accurate.

The use of any of the following terms does not form a complete contract. There is much more that needs to be included. The devil is always in the details.

RIGHTS

The type of rights affects the price of the photography. Unlimited rights are priced higher than limited. Exclusive rights cost more than non-exclusive. Transferable, assignable or sublicensable rights are priced higher than those that aren’t.

 

Limited – The customer can use your pictures in a limited and specific way. For example: limited to one annual report, limited to one year’s use, limited to a print run of 10,000 brochures, limited to whatever-you-want, etc. Be sure to spell out the details.

 

Unlimited – The customer can use your pictures in an unlimited but often still specified way and usually within a certain time period. Unlimited is not necessarily forever but you must specify the details. For example: unlimited print use for one year, unlimited website use for five years, etc.

 

Exclusive – Only the specific customer can use your pictures in a specific way for a certain period of time. Pay attention here because unless specified, this can also mean that you cannot use your images, not even outtakes or similars.

For example, The XYZ Company wants the exclusive right to use your photo of a Toronto business conference for five years. This means they don’t want anyone else, including you, to use this photo for the next five years.

You can also grant exclusivity based on location, industry or other factors.

For example, if The XYZ Company is an event organizer located in Toronto, it might not want any other event organizer in the Toronto area to use the same photo. So The XYZ Company needs exclusivity in their industry but only in the Toronto area (i.e. no other event organizer in the Toronto area can use the same photo). In this case, you could still license the same photo to the company that did the event lighting, the company that catered the event, the guest speakers, etc.

 

Non-exclusive – You can license the same picture to anyone else at the same time as the initial customer is using that picture. This is always the preferred option for photographers.

 

Sublicensable – The customer can license the picture in any way to third parties, and even charge a fee for it, without your prior permission. In most cases, you probably don’t want this to happen.

 

Non-sublicensable – The opposite of sublicensable. This is always the preferred option for photographers.

 

Transferable – The customer can transfer all of their rights to the picture to a third party without your prior permission any time during the license period. The third party would normally assume liability for proper use of the picture during the term of license.

For example, The XYZ Company has a five-year license but it goes out of business after a year. The owner then starts up New Company Inc. and transfers the original license from The XYZ Company to New Company Inc. and continues to use the picture for the remaining four years.

Other possible examples: The XYZ Company gets bought and the new parent company continues using the picture; The XYZ Company goes bankrupt and creditors take control of the license.

 

Non-transferable – The opposite of transferable. This is always the preferred option for photographers.

 

Assignable – The customer can assign some or all of their rights to third parties without your prior permission. In an assignment, the initial customer would normally remain liable for the performance of the license.

For example, a company might assign some or all of its rights to a sister company. A building owner might assign some rights (i.e. give pictures) to the building architect, the landscaper, the interior designer, etc.

 

Non-assignable – The opposite of assignable. This is always the preferred option for photographers.

 

If allowed by you, when a customer transfers or assigns the pictures to a third party, they might send a copy of your license to them. But in most cases, the original customer will just send the pictures. The third party will have no idea what the original license terms are and you may lose control of the photos. This is why using non-transferable, non-assignable and non-sublicensable are important.

If applicable, to help clarify the issue, you might want to add some words to your licence that specifically state that no third-party distribution is permitted, or at least not without your express consent.

 

A license can have a mix of rights and “non-rights”. For example, a customer might get exclusive and unlimited print use for two years and non-exclusive electronic use limited to its own website for 10 years.

 

First Rights – The customer is the first one who can publish the picture. No one else, including the photographer, can use the picture before the customer has. First rights often include a subsequent period of exclusivity.

For example, a customer might get first rights and 60 days of exclusivity. In this case, no one else can use the picture during the 60 days after first publication.

 

One-time use – This is common for print use but it’s sometimes used for online use, too. In print, the customer can publish the picture just once, perhaps in one magazine, one annual report, one newsletter, etc. An online publisher might have to take down the image after the license has expired depending on your other license terms.

One-time use can also be very literal. Sometimes a magazine will use the same photo in an article, in the table of contents page and on the front page, either full cover or as an inset. A newspaper might use the same picture on its front page, in more than one article and in an editorial. How many uses are these, one or multiple?

 

Perpetual archival rights in original context – This applies mostly to online use. To allow an online publisher to continue running an already-published online image, you can grant perpetual archival rights to the photo in its original context. This means the photo can be left in its original context forever. The publisher doesn’t have to delete the image after a certain time period but they can’t repurpose or reuse the image in any other way.

 

Never license the right to simply use a photo. This is far too vague and open-ended. Also, if you don’t explicitly say non-exclusive, non-assignable, non-transferable and non-sublicensable then it might be assumed, depending on the situation, that it is exclusive, assignable, transferable and sublicensable.

 

Licensing any rights to a customer does not include Moral rights (Section 14.1(1) of the Copyright Act). Moral rights belong to the photographer and cannot be licensed, assigned or transferred. Moral rights can only be waived, in writing, by the photographer.

 

Unlimited and perpetual are not the same

Unlimited Use – The picture may be used and reused in any way during a certain time period. You must specify the details.

 

Perpetual Use – The picture may be used in a certain way forever. Again you should specify the details.

For example, a company that has unlimited use of an image for two years might use that picture on its website, in various magazine ads, in various press releases and on its product labels for two years.

A company that has perpetual use of an image for a product label may use that image only on its product label for as long as that product is sold or for as long as that label is used. You must always specify the details.

 

What if they want all rights?

In almost all cases, the customer doesn’t know what this means or what it includes. Instead you might offer:

• Exclusive and unlimited use for a specific time period.

• Exclusive and unlimited use in specific media.

• Exclusive and unlimited use in a specific territory. Although this is not effective for online use.

• Industry and/or territory exclusivity with specific limited use for unlimited period of time.

One of these, or something similar, may suit the customer’s need and none of them gives away your copyright.

Here’s a little copyright secret that few people know but it may or may not be of help to you:

Like a handful of other countries, Canada’s copyright law has reversionary rights (Section 14.1). If you give away the copyright to a photo, then 25 years after your death, the copyright can revert back to your heirs regardless of what your original contract said. But remember that copyright in Canada lasts for 50 years after the death of the author. (Note: a possible upcoming change to NAFTA may change Canadian copyright duration to 70 years. I don’t know if this will affect reversionary rights.)

In the US, reversionary rights (Section 203) are much better because the author doesn’t have to die first. The author can get back the copyright after 35 years but some restrictions apply. Under US law, copyright lasts for 70 years after the death of the author.

 

USAGE TYPES

These are general categories and each can be broken into smaller, more specific categories. These categories can often overlap.

The reason these categories exist is because they affect the price of the photography. Very generally speaking, advertising is priced higher than corporate and collateral which is priced higher than publicity and editorial.

Some commonly used terms for usage should be avoided because they’re meaningless. Web use, commercial use, business use and marketing use are all too vague.

 

Advertising – The customer pays a third party to publish or use the pictures. For example, print ads, billboards, transit ads, point-of-purchase posters and displays, catalogs, product shots for online stores, flyers and brochures, etc.

 

Corporate – The customer uses the pictures to provide information about their business. This usage can be internal or external.

Internal means the pictures won’t be seen by the public. For example, the photos might be used for an employee-only website, an in-house publication, an in-house Powerpoint presentation, etc.

External means the public, or at least the company’s customers, will see the images. For example, the pictures might appear on the company’s website or annual report. Often, but not always, external use is priced higher than internal.

Sometimes it can be a confusing mix of uses. For example, when a company posts an image on social media, is that editorial, public relations or advertising? You need to know the context rather than just the medium.

 

Collateral – The customer themselves publishes and distributes the images to communicate information about their company. Some photographers will include collateral in the corporate category.

Examples of collateral are business cards, profile pictures on social media, product information brochures but not sales brochures, product manuals, Powerpoint presentations used at conferences, conference programs, even pictures on T-shirts or coffee mugs that are given away as gifts, etc. Book publishers often use the book’s cover photo on bookmarks, posters, the book website, etc.

 

Editorial – The image is used strictly for informational purposes such as in newspapers, magazines or textbooks.

 

Promotional – Somewhere between collateral and publicity or public relations but it’s not paid advertising. Some photographers don’t use this term because it can be confused with advertising.

 

Publicity or Public Relations – The customer freely gives away the pictures to be used in an editorial context. This is also called a “media handout” although nowadays the end user is often not a media outlet.

Publicity would also include uses such as a business conference program, a business convention poster showing a guest speaker’s portrait, or any other editorial channel the company utilizes to communicate information to its audience. You have to specify that this is non-paid publicity because paid publicity is advertising.

 

Let’s Review

Let’s say you’re trying to create a license for The XYZ Company to use one of your photos:

1) An unlimited grant of rights to The XYZ Company for an unlimited period of time in unlimited media.

You just gave away your picture. The XYZ Company has the right to do anything with your picture forever, including licensing and selling it to anyone. You might be unable to use the picture.

 

2) A non-exclusive, unlimited grant of rights to The XYZ Company for an unlimited period of time in unlimited media.

Similar to #1 but now you have the right to use and license the picture over and over again to anyone else.

 

3) A non-exclusive, non-transferable, non-assignable, non-sublicensable, unlimited grant of rights to The XYZ Company for an unlimited period of time in unlimited media.

Same as #2 but now, only The XYZ Company itself can use the picture for anything it wants forever. You can continue using the picture any way you want.

 

4) A non-exclusive, non-transferable, non-assignable, non-sublicensable, limited grant of rights to The XYZ Company to use the picture on its web site, CompanyXYZ.com, for an unlimited period of time and to use the picture for its own public relations for up to five years.

Same as #3 but now The XYZ Company can only use the picture on its own web site forever and for its public relations efforts for five years.