So you’ve decided to license your photos — Part 2
In the first installment of this series, I described my workflow for selecting and categorizing images for commercial and/or editorial licensing. Next we’ll examine what kinds of licensing options you might consider offering, and what specific permissions you are granting with each.
As always when discussing things that stray into legal matters, 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. I am not an attorney, so nothing I say here should be relied upon as legal advice. If you are considering having a standard contract for image licensing, you should definitely consult an attorney who specializes in intellectual property law relevant to your region.
And now that that’s out of the way…
You’re the “decider”
If you’re a freelance photographer, you are — and always will be — the sole and exclusive owner of your photos. That means that you’re the person who decides whether, how, for how long and for what purpose anyone is allowed to use your photos. All of those decisions should be spelled out in an image licensing agreement between you and each person or organization that wants to license one or more of your photos. An exception to this is when you are making your photos available on stock photography websites, which usually have their own standard licensing agreements — both to cover their relationship with the photographer and that with their end users. If this is the route you want to take, it’s crucial that you read and fully understand both those agreements, because they are not usually up for negotiation.
But if you’re planning to license your work directly, there are a lot of things to consider in order to protect yourself and your work. The first thing to know is that when you grant someone permission to use one or more of your images, you’re not letting go of any rights. As I mentioned above, you are the sole and exclusive owner of all rights to your work. Rather, you’re only granting a license to use those photos — nothing more, nothing less.
What should be in a licensing agreement?
A legal agreement’s primary purpose is to make sure everybody understands and agrees to the rules, so nobody gets screwed. And as I assume you’re basically an honest person, it’s mostly about making sure you don’t get screwed. That means you’ll need to get really creative in thinking about all the ways people can use your photography that you're uncomfortable with. I’ve already done some of that thinking for you, but as I stated at the top of this article, always consult an attorney before entering into any legal agreement. Of course you’ll also have some things in there to protect your clients.
Scope
The first thing to consider is the scope of the license you’re about to grant someone. This covers a lot of bases:
Which specific image(s) are you licensing? You’ll want to list the file name, description, and if possible a thumbnail of each and every image you’re giving the licensee permission to use, so there is no room for confusion.
Are you granting exclusive or non-exclusive use of your images? This is a hugely important one because an exclusive license means you can’t license those images to any other client for as long as the license is active — not a great position to put yourself in unless you’re getting paid handsomely for it. What’s more, if you’ve ever granted a perpetual non-exclusive license on an image (for example by uploading it to Unsplash), you can never offer it for exclusive licensing again, because anyone who has downloaded that image now has a license to use it. (See my article on Unsplash for more reasons not to use that and similar services.) So unless you were specifically commissioned to take photos for a client — photos you probably couldn’t sell to anyone else anyway — you’ll probably want to stick with a non-exclusive license.
Quick side note: a photography agreement and an image licensing agreement are two separate things, and they’re not mutually exclusive. If someone commissions you to take photos and edit them, that doesn’t automatically give them the right to use those photos; you should either have a separate licensing agreement spelling out the permitted use of those photos, or include a licensing section in your photography agreement to the same effect. Just think of what could happen if you don’t; in the best case scenario your client might not realize that it’s common courtesy to credit the photographer when sharing images on social media or in print, and at worst the client might think they own the rights to your photos and start selling prints without your knowledge.
For what purpose will your photos be used? There are two options here: commercial or editorial use. Briefly, in a commercial license your images can be used to monetize and advertise a product, business or service, whereas in an editorial license they may only be used for news or educational purposes. Each comes with its own restrictions. The most consequential for commercial licensing is that any persons, property and trademarks appearing in the photos may require signed releases. Images licensed for editorial use are less restrictive but cannot be manipulated; they have to reflect the reality of the scene. Both are subject to additional restrictions depending on the location where they were shot. For more information on how these two uses are different, read part 1 of this series.
What media types are you allowing your images to be used for? It’s not just a question of online-only or print use. Consider the following possible places your image might be used, and decide which ones you want to either allow or explicitly disallow:
Print media (e.g. fine art prints, books, magazines, brochures, calendars, stickers, buttons)
Online content (e.g. website, blog)
Email campaigns (as embedded images)
Downloadable digital content (e.g. PDF files, eBooks, downloadable video)
Clothing and other merchandise (e.g. t-shirts, caps, jigsaw puzzles)
Printed or digital billboards
TV or streaming video
Video on physical media (e.g. DVD, Blu-Ray)
Which media types you allow also determines the image resolution you decide to license. For example, fine art prints require a much higher resolution than email campaigns. Explicitly limiting image resolution to suit the use case has several advantages:
By exporting images at the target resolution, you can ensure the optimal quality and sharpness of the image instead of leaving it up to clients (and their often mediocre photo editing tools) to downscale the image.
Smaller image files are simpler and faster to deliver (e.g. as email attachments).
Resolution-limited images are less likely to be used in unauthorized ways (a web-resolution image looks terrible when printed out in a large size).
For each media type, you would be wise to set a reasonable reproduction limit, i.e. how many copies of each image you are allowing someone to make. Are you licensing the use of your image for a single framed print on an office wall, or will a copy be gracing every guest room in a large hotel? In the first case you might charge up to a few hundred dollars, but if the hotel paid you that same amount and then printed a thousand copies, you’d likely feel cheated. On the other hand you can’t simply multiply your single print licensing fee by the number of hotel rooms, because that amount would be unrealistically high. In other words, it’s important to clearly understand how your client intends to use your images, and to align the terms of your licensing agreement with that intended use while at the same time protecting yourself against any unauthorized use. You should also keep in mind the differences between printed and digital content, and how that changes the definition of “reproduction”:
For digital content, one way to represent the number of reproductions is the total unique locations (i.e., URLs) that your file is available from.
Another way to limit use in digital content is to set a limit on web image impressions, and optionally charge a nominal fee for any impressions over that limit. This is more difficult to track, but most web analysis tools can report this data.
In another scenario, you might offer a discounted price to a local startup for licensing one of your photos to use as their website hero image. But what if their business takes off and within a year they’ve expanded all over the world and rake in tens of millions of dollars in revenue, in part due to your eye-catching photo? It will be impossible to go back to that client and demand more money while the license is active. A simple way to protect yourself is to set a reasonable license term or expiration date so that you have an opportunity to renegotiate after the term expires.
Finally, it’s a good idea to define the geographic territory(ies) in which you are allowing your image to be used. Perhaps you’re licensing to a local t-shirt shop, and you’re not expecting it to go beyond a limited market. But lo and behold, the t-shirts go viral and the shop starts taking orders online and shipping them all over the planet. Setting a quantity or time limit is one way to prevent the abuse of your license, but defining a specific territory is yet another way to protect yourself; another reason to limit your image’s geographic reach is if it might be considered offensive or illegal in some countries. With digital content it’s a little less clear, since a website is visible from most anywhere in the world. In that case, the meaning of geographic territory could be interpreted as where in the world the website bearing your images may be actively promoted.
Ownership and photographer’s rights
We cannot assume that our clients understand copyright law, or have even a basic understanding of what they are getting when they hand over money to a photographer. There have been cases where someone paid a photographer to shoot an event, and then assumed that they owned the copyright on those photos. Of course that’s not the case, but to avoid nasty misunderstandings you should be crystal clear about who has the rights to your photos, and what you as the photographer are allowed to do with them even under an exclusive license. The details are really up to you (and some may have to be negotiated with the client), but I would recommend a few basic stipulations as a starting point:
You as photographer are the sole and exclusive owner of all right, title and interest, throughout the world, to all mages and any copies of the images, in perpetuity, and barring any exceptions you’ve otherwise agreed to, you reserve all rights — period.
Regardless of whether you’re licensing your images for exclusive or non-exclusive use, you retain the right to use and publish those images for your own promotional purposes on your website, blog and social media, as well as display them in art gallery exhibitions, or offer them for sale as prints and in photo books.
For time-sensitive reportage or photos commissioned for a specific article or event, you can optionally include a “first right to publish” clause in which you promise to wait a certain length of time before publishing the photos on your own social media — so as not to take the wind out of your client’s sails. But remember that this is something you have decided to do as a courtesy to your client, not because they have an inherent right.
Licensing fee, expiration, and renewal
Not to be left out of the agreement, of course, is payment. Unfortunately I can’t offer any advice on how much to charge for a particular license, because there are simply too many variables, not least of which is the quality and marketability of your work, what you feel it’s worth, and what clients are willing to pay for it in your area. That said, you absolutely must include a total price for whatever images you are licensing under your agreement, and don’t forget to include any applicable sales tax!
One helpful thing to include is something to the effect that until the license is paid in full, the client has no right to use the images. (You probably shouldn’t even hand them over until they’ve paid, but that’s not always an option.) Another important consideration, as I’ve mentioned before, is to set a term or expiration date for the license. This would probably not apply to anyone buying a single-use license to one or more photos to frame and hang in an office building, but it’s essential when dealing with images used on a website.
To keep things simple, you can even set the license to autorenew unless one of the parties cancels it before the expiration date, but that depends on how much control you want to keep of the process.
Additional restrictions on use
Speaking of control, if you take pride in how your photos are composed and edited, you will probably want to restrict what your clients can do with the files after taking delivery. You should also explicitly disallow anything that could either land you in trouble or let your client profit directly from your photos. So here are some of the restrictions I list in my license agreement, regardless of how likely I think they are to actually occur. Clients are not allowed to:
use my images in an unlawful manner, or in violation of any regulations or industry codes
use my images in any way that allows unauthorized people to download, extract or redistribute them as standalone files
alter my photos in any way, such by editing in Photoshop or applying color or effects filters, with the exception of minor cropping and toning as required for publication
remove embedded watermarks or metadata
use any of my photos as the distinguishing feature of a trademark or logo
sell any products in which my photos are the primary value.
employ machine learning, AI, or facial recognition on my photos
use my images to generate NFTs (non-fungible tokens)
sublicense my photos to others
reuse my photos for a purpose other than the one for which they were originally licensed
Of course the language I use in more detailed; I’m only providing a general idea of some of the things you can protect yourself against.
Photo credit
Depending on the purpose for which they are licensed, I may require that any place my photos are displayed or reproduced, they be accompanied by photo credit or a copyright notice. For example, in a city welcome guide that contains photos of the downtown area, I would insist on having my name listed underneath or next to each of my images. On the other hand, I would not insist on visible photo credit on a billboard or the hero image on a website because this could distract from the message. However, there are very few situations where I would not ask for photo credit. And yes, I do enforce this; I monitor my clients’ social media accounts and a few times I’ve had to send reminders. Most of them quickly corrected their oversight.
Standard legal stuff
Finally, any legal agreement needs some boilerplate lingo covering things like warranties, third-party infringement, indemnification, limitations of liability, assignment, severability and the like. (The list goes on, but this is absolutely where you’ll want an attorney involved so I’m going to stop here.)
Conclusion
I hope that this article 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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