Licensing vs copyright release

Reference: Former Art Buyers and photography consultants Amanda Sosa Stone and Suzanne Sease. Usage terms guide created by Kat Dalager.

Who owns the copyrights?

By default, photographers own all rights to their created images and sell/transfer rights to agencies and their clients. As a client, you do not “automatically” own the images shot by your photographer, even if you commissioned him or her to shoot for or behalf of your agency, business, family and even portraits of yourself. You are, in essence RENTING, not buying an image unless explicitly stated in the agreement with the photographer. Technically, even small modifications of the photos requires the photographers’ permission. For example adding an instagram filter to your licensed photograph will be cause for upset, since it is not a representation of his work The usage terms in the agreement defines where and when your photographs can be used. Here are some sample license agreements that photographers may use:

Examples of usage agreements

Here are some samples of how photographers phrase their usage agreement:

Standard Usage License (Dubai One Year)

This standard license is usually based on a photographers standard rates.

One year unlimited exclusive in Dubai for advertising and promotional rights and usage in any and all media for ordered photos, effective date of delivery. Artist retains self-promotion rights forever, as does the agency. Client reserves first option of reuse upon expiration of current rights.

Extended License Agreement (GCC, two years)

This is usually negotiated if you feel that the standard license doesn’t quite fit your usage requirements. This usage agreement can cost a little more than the standard license.

Two years unlimited exclusive regional (GCC; Bahrain, Kuwait, Oman, Qatar, Saudi Arabia, UAE) advertising and promotional rights and usage in any and all media for entire selected orders, effective date of delivery of the digital high resolution photos. Artist retains self-promotion rights forever, as does the agency. Client reserves first option of reuse upon expiration of current rights.

Extended License Agreement (international, two years)

If you need to use the material for international usage. This will cost more than the previous extended license agreement.

Two years unlimited exclusive international advertising and promotional rights and usage in any and all media for entire selected orders, effective date of delivery of the digital high resolution photos. Artist retains self-promotion rights forever, as does the agency. Client reserves first option of reuse upon expiration of current rights.

Extended License Agreement (Unlimited usage)

When you require the images to be part of your image bank for an unlimited period of time. This will, you guessed it, cost more than the previous extended agreement.

Unlimited exclusive global advertising and promotional rights and usage in any and all print for an unlimited time. Includes all material ordered. All images, including outtakes, may not be sold as stock. Artist retains self-promotion rights forever, as does the agency.

Total buyout of copyright

When you want to own the image copyright. This will cost sometimes more than 900% of the original quotation.


Definition of terms

Time

This is the length of time an image or images will be used: one year, two year, one time, etc.. It is best to specify “from date of first use” when negotiating a license for an image. Standard use generally defaults to one year use {from shoot date} in a specific medium unless terms are otherwise negotiated.

Quantity

This is the number of times within the time period that the image can be used. There are three general options: Limited: A limited number of prints that can be printed for example for 5,000 prints within the time period purchased. This option is rarely applied in UAE. mostly in the US. Unlimited: Can be used an unlimited number of times within the time period licensed. This does not mean that the copyright is yours or your clients, nor does it mean the same as “unlimited time.”. Total Buyout: You have purchased the copyright to the image and have full rights to do whatever you want with the image. You own it, basically. That usually requires a very specific, carefully worded purchase agreement. Expect to pay a lot for this usage. Most photographers don’t sell their copyrights unless the price is more than 5x to 10x the initial cost of the shoot.

In the UAE, agencies and companies often bully young photographers into signing a copyright release or full buyout but this is actually an unethical practiced is banned in many countries like Germany and the US.

More experienced photographers would be less likely to buckle under the pressure as newer, more hungry photographers.

Exclusivity

Exclusive: The photographer cannot sell the image(s) (and the outtakes, if specified) to anyone else during the time period of the license. Exclusive to Industry: The photographer cannot sell the images to anyone else within the same industry (Liquor, Banking, etc.) Non-Exclusive: The photographer can sell the image(s) to other clients at any time.

Geographic region

This is the area in which the images will be seen. International: Throughout the world (internet is automatically global). Regional: Specific region (GCC, MENA, EUROPE, etc) By Country: Specific countries (UAE, Bahrain, India, etc..)

Market

This category also gives the artist an idea of the degree of exposure. Consumer advertising generally receives more exposure and at a premium cost. Trade is not as expensive, nor as far-reaching in exposure. Editorial is relatively cheap. Consumer: Markets to “people who buy things”; it is purely commercial (sells things) in nature and the artist want a piece of the action because of the high degree of exposure. Trade: Markets to “people who sell things to others”; it is lower down on the food chain, and therefore not as expensive. Editorial: Informational in nature, not commercial. Magazine layouts and textbooks fall into this category.

Usage realm

This category further defines how the images will be used. These categories are then segmented even further by defining specific mediums for each. Advertising: A medium that sells something, like an ad or an outdoor board. Promotional: A medium that promotes something, like a poster for an event like a concert. Public Relations: Similar to Promotional, but more awareness-driven and less commercial. Corporate: Annual reports or internal materials like sales kits. Editorial: Again, informational in nature, not commercial. May accompany an article or be included in a textbook.

Media

Media usage describes where an image will be seen and can be defined as precisely as you choose. As with photography, when negotiating with talent the specific media included will directly affect your price. Broadcast use is seldom needed, but can be purchased if necessary. Remember that sometimes being TOO specific may come back to bite you later. Any And All Media: Covers EVERYTHING: all print, OOH, POS, Electronic and Broadcast. “Any” and “All” are somewhat redundant, but it drives home the idea that everything is covered. All Print: Generally, anything printed onto paper that you can hold in your hand: newspaper, magazine, collateral, direct mail. You may expand your negotiations to include POS or OOH by adding it specifically, otherwise they are generally not included under this category. Exceptions may include GO cards or similar limited exposure items. Newspaper: Use this category in conjunction with Geographic Region. Size also plays a role. Magazine: Use this category in conjunction with Market and with specific publications. Collateral: Includes anything in print that “goes along with” the campaign but is of secondary importance. Things like brochures, some mailers and bill stuffers fit under this category. Direct Mail: Pieces that are mailed to people. Quantity of pieces and Geographic Region affects pricing. Where the image is seen also makes a difference, whether it’s on the cover, envelope, etc. Point-of-Sale (POS) or POP (Point-of-Purchase): Things that will be seen where the product is sold. Banners, signage, counter cards, displays, in-store posters, table tents, hang tags. Out-of-Home (OOH) or Outdoor: Virtually anything seen outside of your home: outdoor boards, bus sides, trans stops, rail cards, GO cards. Trade Show: Trade show booths or materials used in a trade show. Show attendance and how the image will be used must be discussed. Electronic: Media that is not printed: Internet, C Ds for distribution, Asset Management System, screensaver. Unless rights are specifically purchased, images cannot be resold. Internet: Global internet use. Where it will be seen (home page or inside page)may affect pricing. Sometimes numbers of hits makes a difference also. Miscellaneous: Things like Ad Planners must be negotiated apart from the other media because of the potential for wide-spread, undetermined use.

Body of work

This means all of the images shot for the project, not just the selected image or images. Some photographers will automatically sell you the rights to the entire body of works, but most will sell you the rights to only the selects. You will need to clarify at the beginning of the negotiation because usage will default to the selected images only if not specified. You will also want to include a clause that outtakes may not be sold as stock until the rights on the selects expire.

Reuse

It is in your best interest to include verbiage in your initial use statement that covers future reuse. Legally, unless otherwise indicated, an artist can sell an image to another client at any time, with an increased risk after the original use expires. Because the exact date of first use may not be known at the time rights are purchased, it follows that the date of expiration may not be exact. With the proper verbiage, you can create a checks-and-balance system to at least have an opportunity to decide if you want to purchase reuse before your client sees it in another ad. I recommend stating that your “client reserves first option of reuse upon expiration of current rights.” If you and your client do not renew your option, then there is a possibility that the image will be purchased by someone else.

Miscellaneous

You will want to include the right to use images for your agency to use in self-promotion. Those rights are technically not granted past the original usage period without express authorization. Although usually not a problem, it doesn’t hurt to have it stated officially. To get the maximum amount of usage time of an image, include the phrase “from date of first use” or “effective date of first use.” That way, if an image is not used for several months, your usage won’t begin until then. Otherwise, it may be a point of contention a year from the shoot date. This is especially important with talent. If the photographer is coordinating the talent, do not automatically assume that the usage for the talent matches the usage you are contracting with the photographer. You must clarify talent usage at the estimate stage. Find below a typical usage agreement which is part of the negotiations between the photographer and the client.