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LICENSING PHOTOGRAPHY
Most commercial photography is licensed, not
sold, for a specific use or uses over a
designated period of time. The photographer
retains the copyright to all images he or she
creates unless the copyright is transferred to
the buyer by specific written agreement or the
work qualifies as a “work for hire” under the
Terms of the federal Copyright Act.
Licensing, rather than selling photography has a
number of advantages for both the photographer
and the client. For the client, costs are often
lower to license specific rights than to
purchase all rights. For example, if you only
plan to use a photograph in a brochure or an
annual report, why pay for the right to use it
on billboards, in magazine advertising, or in an
Internet ad campaign? For the photographer, the
advantage is being able to license the same
image for several uses to different clients over
a period of time, increasing the amount of
income, which can be generated from a single
photograph. What if you want to make sure that
your competitor doesn’t use the same photograph
in their marketing materials? It is very easy to
write specific terms into the license agreement,
which preclude such competing uses. For example,
a license can be “industry exclusive” so that an
image of a building licensed to the project
architect cannot be licensed to any other
architectural firms. Yet it could be licensed to
the general contractor or the building owner.
The most common licensing arrangement for my
architectural clients is an on- going blanket of
rights that covers use in the architect’s
portfolio, project sheets, design award
submissions, direct mail, public relations
releases, editorial or other A/V presentations,
in-house display and internet home site.
Photography licensing fees are based on the
clients intended usage. The more extensive media
exposure a photograph receives, the higher the
fee will be for licensing it. High-value uses,
like national magazine advertisements, command
the highest price. Small editorial reproductions
accompanying magazine articles bring the lowest
price. Brochures, project sheets and Internet
use fall in the middle. There are several
variables that enter the formula, including the
number of copies produced and the length of time
the image will be used. Prices for my assignment
work include three components: the production
fee, expenses and the licensing fee. (Some
photographers lump the production fee and
license fee together and call it a “creative
fee” or (“day rate”.)
When preparing an estimate, I consider factors
including the assignment description, the
complexity and scope of the assignment, the
client’s intended use of the images, deadlines,
materials, travel costs, props, crew, and my
overhead when estimating what an assignment will
cost. The more accurately you can describe your
needs, the more accurately I can estimate the
cost for the assignment.
A photograph is considered
intellectual property. The photographer owns the
copyright to the images he or she creates and
has the exclusive right to license their use.
Licensing agreements are specific
with regard to use and, in general, should
answer these three basic questions:
• Who will use the images?
• How and where will the images appear?
• How long will the images be used?
This information may be detailed
in the Licensing & Rights Granted section of the
estimate or in a separate licensing agreement
that grants specific rights to commissioning
clients. If several commissioning clients choose
to share in the cost of an assignment, make
certain that each party is provided with a
written licensing agreement describing them as a
licensee and detailing their rights granted.
It’s important that you and your
photographer agree on the scope of a license
before photography has begun. Should your
marketing plans change, be sure to discuss them
with your photographer.
Similarly, if you plan to share
photographs with third parties who have not been
involved in the commissioned assignment (e.g.,
members of the design team, contractors,
consultants, product manufacturers, clients,
tenants or magazine editors), permission must be
obtained in writing from the photographer.
The right to use images cannot be
transferred by anyone without the written
consent of the copyright holder. If you’ve
received photographs without written permission
for their use, it is your responsibility to
secure licensing rights before using them. As a
rule of thumb, a good way to avoid any
misunderstandings is to contact the photographer
before passing along photographs. You should
also advise the party receiving the images to
contact the photographer directly to secure a
license granting permission for their use. Any
copying, reproduction, distribution, public
display or creation of derivative works of
images without specific permission from the
photographer is a violation of Federal copyright
law. Simply having physical possession of
photographs, slides, prints, transparencies or
digital files does not grant the right to use
them.
A LICENSE is a legal agreement
granting permission to exercise specified rights
to a work.
A COPYRIGHT is a collection of
exclusive rights owned by the creator that
controls the use of creative works
COPYRIGHT LAW
Under the Copyright Act of 1976 and the Berne
Convention for the Protection of Literary and
Artistic Works, photographs automatically
receive copyright protection immediately upon
their creation. Absence of a copyright notice
does not relieve a prospective user from the
responsibility of obtaining permission from the
copyright holder. In addition, altering or
removing a copyright notice can result in
liability under the Copyright Act and several
other state and federal statutes.
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