So you’ve decided to license your photos — Part 1
One of the ways a photographer can earn passive income from their work is to offer images for licensing. However, there is something that every photographer should do before considering licensing any of their images. In a future post I will go into the intricacies of licensing agreements, but in this article I will be focusing on something that every photographer should do before considering licensing any of their images: the selection process.
Depending on the size of your catalog, cherry-picking the photos you want to license can be quite tedious and time consuming. Having a clear understanding of what makes an image licensable for commercial as opposed to editorial use — and what kinds of images are better reserved for prints or photo books — can be a huge timesaver, not to mention keep you out of legal trouble.
Speaking of legal trouble, let me start off with a disclaimer:
Note: The following information is provided as a helpful reference to myself and others who are interested in offering their photography for licensing, either directly or through stock photography agencies. I am not an attorney, so nothing I say here should be relied upon as legal advice, nor do I claim that these conditions cover all places and situations. If you are unsure about the legality, appropriateness, or risks associated with licensing a specific image for either commercial or editorial use, you are strongly encouraged to consult an attorney who specializes in intellectual property law relevant to your region.
And now that that’s out of the way…
The quest for passive income
I love photography. When weather permits, I cannot wait to go outside to take pictures — of my neighborhood, downtown, local parks, or on the road. Most other times I’m pining away, checking my weather app for the next opportunity to go out and shoot. I do have a full-time job so I don’t rely on my photography to make a living, and although I’m never one to turn down freelance work, I also don’t consistently seek it out. I can be happy just taking pictures in my own time, in my own way. I shoot for the fun of it — and for the art of it. But that doesn’t mean that I wouldn’t like to make some money from my photography, if anything just to recoup some of the significant expenses of acquiring and maintaining my photography equipment.
Don’t get me wrong, I love doing photo shoots, and I think I’m pretty good at it. But photography for me is first and foremost a creative outlet. When I grab a camera, I really just want to go for a walk in the city or in nature and shoot whatever catches my eye. So if I don’t want photography to be a second job, I’ll have to find a way to score some passive income.
There are various ways photographers can make passive income from their work, but for those of us who are not famous, the two most feasible ones are selling prints and licensing. I’m pursuing both avenues, and I’ve actually had a tiny bit of experience with both, but licensing is the more hands-off (and therefore the more passive) of the two. I’m not the person to ask for advice on best practices by any means, but I have done quite a bit of research and I would like to share what little knowledge I have gleaned.
Curating your catalog
Before we can license any images, we’ll need to decide which ones we’re going to make available. To make things a bit more complicated, there are two primary types of license under which we can offer an image: commercial and editorial. Without going into a lot of detail, let me just say that a commercial license allows people to use your image to monetize, sell, promote, or advertise a product, business or service, whereas an editorial license only grants them permission to use your image for educational or news-related purposes — no monetization allowed. Each type of license also comes with certain restrictions on image content and location, and there are additional moral and ethical questions to consider when deciding whether and how to license a specific image.
A commercial license is the most restrictive for the photographer
A commercial license places the most restrictive rules on what the image can and cannot contain, and where it can be taken. This is because the whole point is to be able to use the image in advertising, including magazine and television ads, posters, even billboards. And when you submit your photo to a third-party stock agency, you will have no say over how or by whom it will be used (N.B. this also applies to free sharing sites like Unsplash). So unless you have explicit permission from every person who appears in your photo (in the form of a model release), it would be a bad idea to have that photo appear in a magazine ad that can be used to advertise just about any product (let’s say, Viagra). It stands to reason that candid photos of strangers taken on the street cannot be licensed for commercial use — unless you’ve somehow figured out a way to track every one of them down after the fact!
In contrast, an image licensed for editorial use may only be used in news stories, educational materials and other publications meant to inform. Cardinally, your image may not be used to directly or indirectly promote any product or service that generates income for the licensee. For this reason, an editorial license is much more permissive in terms of who and what can appear in the image, or where it can be taken. And with rare exceptions, no model or property releases are required for an editorial license.
Now that we have covered the basics of the two main licensing types, let’s get into the selection process. To keep things straightforward, I have presented this as a simple question-based workflow. This is the precise workflow that I use when picking images from my Lightroom catalog, and my hope is that it is both useful and self-explanatory.
My workflow
Because commercial licensing rules are the most restrictive, and an image that passes this test can usually be licensed for both commercial and editorial use, I consider that option first. If it fails the commercial test, then I check to see if the image meets the criteria for editorial licensing. Finally, after gaining knowledge about which of the two licensing options is most suitable, I ask myself a few questions that help me to reflect on the wisdom of licensing the image at all.
So without further delay, here is the workflow. I’ve emphasized key words for visibility.
Commercial licensing workflow
Does the image contain any recognizable persons (someone who can recognize themselves in the image, even if their face isn’t visible) for whom you do not have a signed model release?
Does the image contain any privately owned animals (that their owner would recognize) for which you do not have a signed property release? Remember this doesn’t just cover pets — it can also include horses and cattle.
Does the image contain any license plates or other personally identifiable information that is legible at any level of magnification?
Does the image contain any trademarked objects where the object is isolated or the main focus of the image? This can include shop signs, product brands/logos, automotive brands/logos, handbags, copyrighted maps and globes, etc.
Does the image contain any art, including copyrighted sculptures, street art or architectural landmarks that are the main focus of the image?
Was the image taken on private premises for which you do not have a property release signed by the owner, regardless of where the camera was pointed?
If you answered “Yes” to any of the above questions, the image may not be eligible for commercial licensing as is. You can either remove the disallowed features (e.g. in Photoshop) — which isn’t an option in the last case — or consider the image for editorial licensing instead. Note that while no property release or permission is required for licensing a photo taken on private premises for editorial use, that doesn’t mean you shouldn’t seek permission anyway, especially if you’d like to maintain a good relationship with the owner.
Editorial licensing workflow
Was the image taken at a ticketed event for which you did not have a press pass?
Does the image feature a celebrity or a restricted landmark?
If you answered “Yes” to either of the above questions, the image may not be eligible for editorial licensing. Also note that editorial images must accurately reflect a scene and may not be materially altered, e.g. to remove disallowed features.
Further questions to ask before making the image available for licensing or sharing
The following questions do not address any specific legal issues but rather serve as a reflection on important ethical considerations:
Does the image contain places, scenes or objects that are sacred to specific groups or populations (e.g., a Native American Sun Dance ceremony)? If so, it should not be shared online, much less offered for licensing, without explicit permission from the caretakers, facilitators or owners of the subject(s) in question.
Does the image prominently feature one or more unhoused persons? If it’s a posed portrait, does the image center the subject’s individuality? If a candid shot, does the image protect the subject’s privacy, modesty, and human dignity? Can the image legitimately be used for editorial purposes in such a way as to help improve the conditions of unhoused people?
Does the image prominently feature a child or likely minor? If it’s a posed portrait, did you obtain permission from a parent or guardian? If a candid shot, does the image protect the subject’s privacy and modesty? Is the image wholesome and not at all creepy?
If you decided to offer the image for commercial licensing, how would you react if you saw it displayed on a billboard, in a magazine ad or on television? Would you be proud and happy? Or would you be a little embarrassed?
Final check: Shutterstock known image restrictions
Finally, before deciding to upload your images to a stock photography website or otherwise offering them up for licensing, I strongly recommend checking the list of known image restrictions maintained by Shutterstock. It has a wealth of information about restrictions on specific brands and trademarks, events, objects and subjects, as well as places and landmarks around the world.
Be sure to read the specific allowed and disallowed use for each type of subject; most items on this list are prohibited for commercial use, but some are even restricted for editorial use. And even when editorial use is allowed, some items may only be used in a documentary (i.e., not illustrative) context. Generally, editorial use of these subjects also requires a proper caption.
When in doubt, it’s always best to err on the side of caution.
Conclusion
I hope that this workflow inspires you to consider earning passive income from your photography through licensing, and that it makes some sense out of the ambiguous and sometimes contradictory information that is generally found online. It’s okay to admit that art has monetary value, and there is no reason to leave licensing money on the table. If you have any questions or suggestions (or if you’re an IP attorney and you have a correction), please contact me.
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