Complex guideline of images and photographs licensing and usage rights

Complex guideline of images and photographs licensing and usage rights

May 18,2023 in IT Law | 0 Comments

As a professional photographer, you likely aspire to generate income by selling your work, which can take the form of prints, downloads, or image licenses granting the buyer specific usage rights.

However, prior to delving into the business of image licensing, it’s crucial to familiarize yourself with the intricate realm of photo usage rights and licensing processes. This knowledge will help you license your work appropriately and sidestep prevalent pitfalls. The range of licensing agreements open to photographers is nearly as varied as the field of photography itself. Such agreements can span a broad spectrum of usage terms, from editorial to commercial, and from severely restricted rights to exclusive rights.

What  you need to know about image licensing and photo usage rights

I’ve prepared this comprehensive guide to serve as a robust informational resource for you, filled with indispensable knowledge and expert advice to simplify your journey in the realm of image licensing. This guide was prepared in cooperation with experienced photographers with years of experience working in the industry and across image rights and copyright infringement cases

The trustworthy, firsthand insights provided here will offer priceless guidance to keep you on the right track with image licensing.

Are you geared up to understand the correct procedure of image licensing? We will cover each aspect you need to know to alleviate any confusion.

Let’s start this journey with some basic information.

Who possesses the legal authority to license an image?

An in-depth look at photo usage rights and copyright laws pertaining to image licensing

The capacity to offer an image license is limited to the original creator of the photo or someone expressly authorized by the creator to license their images and assign photo usage rights on their behalf. Additionally, photographic and licensing agencies like Pixsy can provide photo usage rights on behalf of the original creator, if such arrangements have been contractually agreed upon.

Under copyright law, the author of an image is identified as the individual who has produced the work and thus, is shielded by copyright protection. As such, the exclusive privilege of deciding when and how their work is used for commercial purposes rests solely with the author.

Who retains the ultimate image rights in the context of image licensing?

Under the Berne Convention’s guidance on copyright law, the person who originally creates an image, i.e., the author, is granted automatic copyright protection the moment the camera’s shutter button is pressed.

Moreover, the Berne Convention mandates that copyright protection is innate and doesn’t necessitate the exhibition of a copyright symbol. Established in 1886, the Berne Convention was the inaugural international consensus on the global governance of copyright. Its core principle is universally acknowledged, though the intensity of enforcement varies across jurisdictions. It boasts the participation of over 170 countries, including notable nations like the US, Canada, the UK, and Australia.

Remember, granting a license for image use does not equate to transferring copyright ownership. The copyright always remains with the original author of the photograph unless they opt to relinquish their copyright under self-determined conditions.

Understanding the reach of image licenses – what factors can be regulated by the license?

The entity or individual offering photo usage rights is termed the licensor, while the party acquiring the photo usage rights is known as the licensee. The legal document employed to confer these usage rights is recognized as a license. Typically, image licenses encompass certain limitations, detailing the scope and nature of rights granted.

Licensors provide licensees with usage rights for a particular image in return for a fee, commonly called the licensing fee. By allocating these rights, the licensor promotes their own work or the work of the rights holder. There are, however, licensing agreements such as the widely recognized Creative Commons license, which do not demand a fee in return for usage rights – these are known as gratuitous image licensing agreements.

The term ‘type of use’ in an image licensing agreement pertains to the specific circumstances, context, and content within which the image can be utilized, such as a newspaper article, an advertising billboard, or a promotional campaign. Typically, image licensing agreements delineate the following types of use:

  • Editorial use – this involves utilizing the image to illustrate or support content in a newspaper, magazine article, editorial feature, blog, or website.
  • Commercial use – in this context, the image is employed in a commercial setting to endorse and/or market products, services, business websites, or concepts, such as its use in an advertising campaign.
  • Promotional use – this type of use refers to the deployment of an image for promotional purposes.

For instance, should you desire to incorporate an image within an editorial piece, you would require an image licensing agreement that specifically permits editorial use. Moreover, you would need to deliberate on the location, timing, and the particular edition of the magazine where the image will be displayed.

Key elements photographers should incorporate in their image licensing agreements

When it comes to image licenses, licensing agreements, and photo usage rights, photographers and their licensees operate within the realm of contractual freedom. This implies that there are no strict governmental guidelines regulating the contents of the agreement.

Furthermore, an image licensing agreement doesn’t necessitate a specific format, allowing for the potential of reaching an agreement orally between the licensor and licensee, barring certain exceptions.

However, it’s generally advised by experts to formalize photo licensing agreements in writing. The absence of a written license could pave the way for a dubious licensee to dispute the agreement’s terms. This may lead to a contentious “he said, she said” situation. In case of any disagreement regarding the specifics of the photo license, a written agreement can serve as a clear point of reference.

Ready-made solutions for image licensing: exploring Creative Commons licenses

For authors whose primary objective is the dissemination of their work rather than monetary compensation, there exist several options within the realm of image licensing. Creative Commons provides complimentary licenses catering to such photographers.

The spectrum of image licenses offered by Creative Commons spans from CC0 (Creative Commons Zero), which relinquishes the work into the public domain, to commercial image licenses permitting licensees to expand upon the creator’s work for commercial endeavors. Each of these CC licenses carries unique attribution requirements, necessitating careful attention from all image users.

How does image licensing work in real?

Given the previously discussed contractual freedom, there are no obligatory stipulations regarding the content of your licensing agreement. However, most licensing agreements tend to address certain key points, such as:

  • Usage rights – when licensing images, it’s crucial to determine the type of usage rights you wish to grant. There are two main categories of usage rights: non-exclusive and exclusive.
  • Non-exclusive usage rights – these rights grant the licensee the privilege to utilize the work strictly in the manner outlined by the license. It’s important to note that photo usage rights under this category are not singularly assigned. A non-exclusive usage right can be simultaneously granted to several individuals by the author or rights owner.
  • Exclusive rights – an exclusive right-bearing licensee is vested with the sole authority to license the images to third parties. Unless a separate agreement has been established, it becomes unlawful even for the author to use their own work. Your licensing agreement can further stipulate that usage rights remain with the original author and do not extend to third parties.
  • Royalty-free license usage rights – images subject to a royalty-free license are sold at a fixed rate for a set duration, independent of usage specifics, and premised on non-exclusive rights. While this makes royalty-free images more affordable for consumers, it translates to lower earnings for photographers.
  • Rights-managed license usage rights – a rights-managed image license restricts the use of an image in one or more ways, such as geographically or temporally. Typically, a licensee purchases the license for one-time use, and any further use necessitates a new agreement and licensing fee payment. It’s also common for clients to secure exclusive usage rights for the duration of the license.
  • Unlimited use – this provision permits the licensee to use the photograph without restrictions on factors like geographical or platform scope, albeit for a fixed license period. It’s essential to note that unlimited use does not imply unlimited duration when licensing images.

Image licensing durations, content, and spatial dimensions

As a licensor, you hold the power to set limitations concerning when, where, and for how long the licensee can use your photograph. Geographical constraints are less prevalent today due to the digital nature of our world but may still be relevant for print editorial photography.

Time frames typically shouldn’t extend beyond 10 years, with 2-5 years being the industry standard. This is because you cannot predict the future trajectory of your client – a small business today could evolve into a major brand within a year, thereby significantly increasing the value of your image.

Plan for the foreseeable future, understanding that the client can renew their license at any point if you are agreeable. It should be explicitly stated that image use beyond the license duration is prohibited and necessitates a new or renewed license.

It’s also advisable to define the use of the image per platform: digital use, for example, is expansive and should typically be restricted in the agreement to specific platforms, unless the client is willing to pay a higher licensing fee.

Leveraging an image license to control the application of your work

Within an image licensing agreement, clearly specifying how your image may be utilized is essential, as well as identifying whether the licensee possesses exclusive or non-exclusive rights. The license can meticulously delineate the nature of usage, either from a technical perspective (including actions like scanning, copying, printing, or CD burning) or a commercial standpoint (covering aspects like distribution or further monetization).

The license may govern online or offline usage, usage in print media, and either editorial, commercial, or promotional applications. The holder of the image rights can transfer the privilege to utilize their work for a single, multiple, or all conceivable type of usage.

The significance of author attribution in image licensing

One crucial aspect often overlooked in image licensing agreements is the identification of the author. Authors have the authority to determine whether they should be named and can include this requirement in the contractual terms.

In the absence of an agreement regarding author attribution, the default practice is to immediately attribute the author’s name to the work. To avoid any confusion, it is highly recommended to explicitly include a provision in the licensing agreement specifying the author’s designation, as many licensees may not be aware of this requirement.

Furthermore, it is possible to establish an agreement on how the author’s name should appear. Should the licensee have the discretion to decide the author’s designation entirely? These considerations can be addressed and detailed within the licensing agreements to cover all available options.

Preserving the right to edit – understanding image licensing changes

The licensor holds the discretion to determine whether their image can be edited by the licensee and the extent to which modifications are permissible. In terms of the right to edit, there are no defined boundaries, granting flexibility for stipulations within the agreement.

For instance, the licensee may be granted the freedom to extensively redesign the image or restricted to making only minor adjustments, such as altering size and color. The level of editing control is subject to negotiation and agreement between the licensor and licensee.

Exploring additional considerations in image licensing for photographers

Including sublicensing and usage rights transfer in an image license agreement is important. It determines whether the licensee can grant sublicenses or transfer the usage rights of an image to third parties. Remember that only the usage rights you own can be transferred, and third parties cannot be granted usage rights without the consent of the author or rights holder.

A rights guarantee can also be beneficial in a photo licensing agreement. By transferring the rights, the licensor confirms their ownership of the usage rights. The licensee must agree to a liability exemption to be protected against third-party claims.

In the event that a third party asserts claims against the licensee, the licensee may assert claims against the licensor.

Image sub-licenses and rights in commissioned works

When granting rights for a commissioned work in an image licensing agreement, it is advisable to align with the purpose of the commission. This helps clarify the extent of the license, especially when certain aspects have not been explicitly agreed upon or lack clarity.

Terminating an agreement follows standard rules for ongoing contracts. Once the specified duration of the agreement has elapsed, it automatically comes to an end. However, terminating a license agreement without a specified duration requires a declaration of intention from either party (unilateral termination) or mutual agreement between both parties (mutual termination).

How to determine image license fees?

When it comes to remuneration in the licensing agreement, you have the freedom to negotiate and establish the terms. This includes deciding whether remuneration should be provided and, if so, how and when it will be provided.

The licensing fee amount is influenced by various factors, with the scope of the license being the most significant one. Other factors, such as the type of rights granted and the permitted usage, also contribute to determining the fee.

To get an idea of pricing for similar image licenses in the market, you can refer to the price lists of others in your industry. Many stock agencies also offer calculation tools that can provide guidance on the typical fees for different types of uses.

In image licensing, there are various remuneration models available to consider. One common approach is percentage compensation, where the fee is calculated based on a percentage of the licensee’s net sales revenue. Typically, this percentage falls within the range of 3.5% to 12%, though the specific amount is subject to negotiation between the parties involved.

Another method for determining remuneration is through unit license fees and minimum license fees, which help establish a flat-rate license fee structure.

It is also possible to combine different compensation methods. For example, a percentage compensation arrangement can be accompanied by a minimum license fee, ensuring payment even in the absence of generated revenue.

Understanding image licensing and stock photography

Stock photos refer to images available on popular stock photography websites such as Fotolia, Shutterstock, and Getty Images. Despite their widespread availability, they are subject to limitations on usage.

The usage restrictions for stock photos can vary depending on the provider, including:

  • RF / RF images / Royalty-free licensing – the term “royalty-free” can be misleading, as it still entails licensing requirements. Royalty-Free (RF) licenses emerged in the 1990s, allowing images to be licensed at flat-rate fees without ongoing royalties. RF images can be licensed for a specific duration and medium, independent of usage parameters, based on the granted photo usage rights. Non-exclusive rights of use typically apply to all RF images.
  • RM / Rights-managed licenses – Rights-managed (RM) is a traditional licensing term used for images offered by agencies, often for historical or iconic photographs. This type of license places specific restrictions on image usage. High-value images frequently have exclusive usage rights granted, and in many cases, the photographer transfers all rights to the agency.

Choosing the right image licensing agreement for your needs

The choice of image licensing agreement depends largely on the intended purpose of the images. While there is no definitive right or wrong way to license images, selecting the appropriate agreement is influenced by the type of photographer you are.

Hobby photographers often find Creative Commons and stock licenses suitable. On the other hand, professional photographers who rely on license fees tend to prefer agreements with clear and specific terms.

Royalty-free licenses offer the advantage of relatively easy monetization, but the revenue potential can vary. Sharing images with image agencies under Rights-Managed licenses can provide broader exposure, although not all images will necessarily sell. Fees for such licenses depend on the agency and the nature of the image material.

Licensing agreements cover a wide range of areas, making it challenging to standardize them solely based on content. Depending on your intended use, you can choose from a variety of licensing agreements. Achieving a clear legal framework that meets the needs of both parties is a practical challenge.

When it comes to exclusive sales, drafting licensing agreements, or determining licensing fees, experience and knowledge of clients and the market play a crucial role. Seeking legal advice is also beneficial.

Investing time, energy, and resources into understanding image licensing and seeking professional guidance is always a wise choice. This ensures the protection of your work online and equips you with the necessary knowledge to address unauthorized use effectively.

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