I woke up this morning behind the steering wheel of the rental car that I’ve been living in since last Saturday. I just wrapped up a really fun gig that kept me in Montana for a week and, somewhere in the early morning hours of driving home along Wyoming’s northern Rockies, I reached a point last night where it made sense to pull off the road and grab some sleep before carrying on. A hotel bed would have been too comfortable to abandon in the morning, so I pulled the car into a park in Buffalo, Wyoming, unstuffed my sleeping bag, and reclined the seat. Four hours later, I woke up to the dawn light, put the key in the ignition and finished the drive back to Denver. The assignment came up at the last minute and kept me in Montana for a few days longer than I originally anticipated, although the drive gave me nice space to think through the content of this post.

Rather than put out a laundry list of ugly contract language, I have decided that it would be most beneficial to take one clause and dissect it in plain English. If this were an anatomy class, this exercise would be similar to looking at one organ rather than an entire system. It is by no means exhaustive and doesn’t account for the entirety of the contract. However, for purposes of sticking to the broad topic of intellectual property and the photographer, it gets pretty close to helping us look for those places where a contract should address those four big things we talked about in the last post. To 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

To help anchor these vague notions to something a little more concrete, I’ve plucked language from a contract that’s received a bit of resistance from other photographers. The publication’s name has been removed and the language has been shortened to help illustrate these points. The relevant licensing clause reads as follows:

“Photographer will own the copyright to the Photographs and hereby irrevocably grants to [Publication] a perpetual, worldwide , fully-sublicensable and royalty-free license to use and exploit all Photographs…. …in any and all media and in connection with any and all products, services and/or other purposes, so long as such use and usage is tied to a [Publication] magazine. Such license will be non-exclusive… …For the avoidance of doubt, [Publication’s] rights will include and are not limited to: (a) unlimited use of any and all Photographs… …accompanied by articles and/or other [Publication] magazine editorial content of all kinds, (b) unlimited use of any and all Photographs… …in connection with commercial products branded or co-branded with a [Publication] magazine title…”

If you’re still awake at this point, you’ve vaulted the first hurdle. The Devil is always in the details and it’s pretty rare to find a client who will highlight the ugly or contentious language for you; it’s just a chore we all have to suffer through. This particular clause has a few doozies hiding out and it’s probably best if we take this one piece at a time.

Don’t Let the First Words Fool You Into Not Reading the Others

“Photographer will own the copyright to the Photographs and hereby irrevocably grants to [Publication] a perpetual, worldwide , fully-sublicensable and royalty-free license to use and exploit all Photographs…. …in any and all media and in connection with any and all products, services and/or other purposes, so long as such use and usage is tied to a [Publication] magazine.”

It’s never a bad move to start out a contentious discussion on common grounds. In this case, the publication reminds the photographer that they retain their copyright before going on to murder most of the value the photographer could hope to extract from their images. Specifically, it grants the publication the ability to take photographs that were licensed for a day rate and use them without any further compensation in “any and all media and in connection with any and all products, services, and/or other purposes.”

The only thing that limits the future use of the images is a very vague piece of language that requires the use of the images to be “tied” to the publication. This could be particularly catastrophic in instances where the editorial publication is an arm of a larger company or where the publication has made partnership arrangements with other entities (think record labels, insurance companies with an editorial branch, lobby organizations, corporate partnerships, etc.)

When you tally up this language through the lens of the specific terms of a licensing agreement, the score doesn’t look so hot:

Specific Timeframe: “PERPETUAL” (doesn’t sound very specific, does it?)

Geographic Scope: “WORLDWIDE” (um, er, also not very specific)

Specific Use: ANY AND ALL MEDIA TIED TO A PUBLICATION MAGAZINE (again, it’s vague enough to leave the potential for future, uncompensated uses to the imagination)

Editorial Day Rate, Editorial Use

And the next sentence:

“…For the avoidance of doubt, [Publication’s] rights will include and are not limited to: (a) unlimited use of any and all Photographs… …accompanied by articles and/or other [Publication] magazine editorial content of all kinds”

This part seems reasonable. The contract starts to lay out several possible uses for your photographs. Again, it’s always a good strategy to start on the issues where there’s little debate. In this case, the publication is reminding you that their editorial day rate is purchasing a license for the use of photographs in their editorial publication. Seems fair enough…

But Wait!

The language that follows co-opts images licensed under an editorial day rate for commercial use. It’s not uncommon for magazine contracts to allow the publication to use your photographs to promote the magazine itself, but this language goes several steps further:

“(b) unlimited use of any and all Photographs… …in connection with commercialproducts branded or co-branded with a [Publication] magazine title”

Uh oh. This could create some ugliness. For example, if the publication is owned by Acme Records Inc. and Acme Records Magazine also puts out a CD, don’t be surprised if your images turn up on the jacket. Uncompensated.

Where’s the Problem?

The cornerstone of our businesses turns on pricing related to specific use, specific timeframe , and specific geographic areas of distribution. When the licensing language of a contract attempts to grab commercial use for an editorial rate, it undermines the value of our photographs and debases the pricing structure that is integral to keeping photographers behind the camera for the long-haul. Negotiating for terms that respect limited use, limited geographic scope, and limited timeframes for a reasonable price is not only a matter of self-respect, it’s also a matter of respecting the value of our profession.

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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.