Last post we established that copyright affords its holder a specific bundle of rights. These rights allow the holder to control aspects of the duplication of their work. Generally speaking, these rights include:

.          1. The right to exclude others from copying your work

.          2. The right to copyright interest in ‘derivative works’

.          3. The right to distribute your work

.          4. The right to publicly display your work

Pretty rote, abstract stuff –I know. The less-rote part about this little package of rights is that it distinguishes our businesses, as working photographers, from how a lot of other industries look at the products that they sell. The short story is that photographers are not in the business of selling commodities.

Wait, Photographers Don’t Sell Their Images?

In a manner of speaking, no, not usually. As a rule, our products don’t have a lot in common with, say, a person who manufactures and sells toothpaste. Toothpaste is a commodity. It is produced, goes on the shelf, has a set price and, when you buy it, the seller could care less if you put it on your teeth or use it as face paint. You bought it, you do with it what you please.

Most transactions involving photographs are conducted by licensing an image, rather than selling it outright. Licensing is what distinguishes us from our counterparts in the toothpaste industry. In all honesty, the way we conduct photographic transactions has a lot in common with how rental car companies work.

So Licensing is Like Renting a Car?

It is. Licensing is the contractual manner in which a photographer gives their client permission to use the photographer’s copyrighted image. If you think of your image in the same way that a rental car agent thinks of her car, you’ll have a good analogy to work from in keeping your agreements straight and, more importantly, in explaining to your less-sophisticated clients why your pricing depends on their use of the image.

When you saunter up to the car rental desk, you’re likely to be greeted with a series of basic questions that will help the agent determine the price you will pay for the rental of the car. These questions usually amount to some variation of the following:

.         1. How long will you be using the car?

.         2. Where will you be taking the car?

.         3. What do you want to do with the car?

Just like your copyright, the rental car company is asking these questions because they own the car and they’re going to give you limited permission to use it. How you answer those questions will help them determine the price of the rental.

The big difference between this transaction and the tube of toothpaste described in the last section is that once you own the toothpaste, you can whatever you want with it; once you’ve rented a car, you’re still very limited to how you can use the vehicle.  Just because the rental agent has given you the keys doesn’t mean that you own it.

The same holds true for image licensing. The photographer retains their copyright in the same way that the rental car company retains the title to the car. When the image is licensed to a client, the photographer will use a similar set of criteria to determine the pricing of the image and then will spell out that criteria in the language of the contract. Commonly negotiated terms of a license are very similar to the questions the rental agent asks at the counter:

.          1. How long do you want to use the image? (Term)

.          2. Where do you want to use the image? (Territory)

.          3. What will the image be used for? (Use)

Term

The first portion of a license agreement will define the time span for which the agreement will be in place or, if you’re still working under the rental car analogy, how long with your client be driving the car? Generally speaking, the term of the agreement affords the client a fixed price for the image over a span of time, even if the value of that image increases.

This is particularly relevant where a client wants an embargo on resale. An embargo defines whether their use of the image will be exclusive or nonexclusive. For example, specific newsworthy images as well as images that are intended to be used for an advertising campaign are likely to be sold under an exclusive agreement for the period defined by the term. The embargo may also limit resale in a specific territory.

Territory

Just like when the rental agent asks you if you’re planning to take the car out-of-state, the license agreement covering an image defines the physical territory where the image will be used. Territory generally covers the reach of the client’s intended use and can be defined by any number of geographic descriptors including states, countries, continents, the entire earth, and (in the most ambitious agreements) the entire universe. (If you’re curious, see this little gem about the expansion of legalese into the cosmos in The Wall Street Journal: http://online.wsj.com/article/SB125658217507308619.html)

Most photo pricing software delineates pricing in a way that is partially based on geographic regions.

Use

The licensing agreement also defines the limits of the image’s use in specific terms. Because price changes with use, an agreement should be clear about the extent to which the image will be used.  Incidentally, use that goes beyond what the photographer had originally envisioned the subject of most photographer’s nightmares. Our biggest fear is selling an image for one use and finding that it has been resold or appropriated for another use without compensation.  To avoid this pitfall, be careful to watch your contracts for vague or expansive language and, when in doubt, an attorney’s advice on sticky language could be invaluable. **

Because the language of use has a lot of secret bastard children, I’ll reserve my next post for talking about a handful of the most notorious ones.

Recap

.          1. Licensing is not like selling toothpaste. It is more like renting a car.

.          2. When you license an image to a client, you should be discussing and defining:

.                    a. The timeframe or the term of the license

.                    b. The geographic scope or territory in which it will be used

.                    c. The specific type of use for which the client will use your image

***

Matt Slaby is a Colorado-based attorney (and photographer).  Matt attended the University of Denver College of Law on a full public interest scholarship.  His experiences in law school include a PILG clerkship for ongoing civil work with El Centro Humanitario’s legal clinic as well as handling wage claims and contract issues for DU’s Civil Litigation Clinic.  He is a founding member of Luceo and, in addition to his photography, brings his legal background to the organization.  Questions, comments, and ideas for future posts are welcome.  Please add them to the comments section or reach me here: mattslaby@luceoimages.com

**DISCLAIMER: Luceo Images LLC and Matt Slaby assume no liability for the information provided above. This information may not be correct when applied to your specific situation. Moreover, the information provided is not intended to create an attorney/client relationship and shall not be construed as legal advice.

Last post we established that copyright affords its holder a specific bundle of rights. These rights allow the holder to control aspects of the duplication of their work. Generally speaking, these rights include: .          1. The right to exclude others from copying your work .         ...