What is a Photography Digital Image License Agreement?
A digital image license agreement is a contract between a photographer (or artist) and a client that outlines the usage rights on images. This is an essential step to legally protect a photographer’s or artist’s work, especially given the ease with which reproductions and digital images can be obtained and manipulated online.
Depending on the images involved a client could take the images from the photographer’s website , including photographs on their "media page" or "portfolio," use an image for a magazine or catalogue that was displayed in the portfolio, use an image as part of a television commercial, or incorporate an image in a billboard advertisement or catalogue. The legal effect of a digital image license agreement is to strictly limit the use of the photographic images by the client to specific uses that the parties negotiate in the course of the transaction.
Essential Components of a Photography License Agreement
In order to ensure that the photographer and licensee are on the same page in terms of the scope of the license, it is critical that certain key elements are included in any license agreement. This is so because license agreements are contracts, meaning that they are always interpreted according to the four corners of the document and the intent of the parties, as opposed to the actual use of the digital image. So in instances where the digital image is shared electronically, used in a sale item, and / or included in a promotional campaign, it is essential that you first check if the license agreement explicitly allows for those types of uses.
While no two license agreements are exactly the same, there are certain components that should be included in a basic photography digital image license agreement: Although these elements are critical to any image license agreement, an artist may be able to negotiate any one of these components. That said, the requirements for any type of re-licensing should always be included so that the image license agreement is clear.
Types of Photography Licensing
Many people ask about the different types of licensing in the photography business. In general, there are four types of licenses:
Royalty-Free License
A royalty-free license is a non-exclusive license that permits a licensee to reproduce the licensed image as often as they want without paying royalties or license fees. Such license usually contains a limit on the time period during which the license is effective. The license may also place limits on the number or type of reproductions allowed, but such restrictions are unusual.
Rights-Managed License
A rights-managed license is a license that permits a licensee to use a single specific image a specifically negotiated number of times and for a specific term and purpose. If a licensee wishes to use the image again, it must obtain a new license and pays additional license fees. Each use of licensed images requires separate handling and licensing. A rights-managed license will require the licensee to provide a description of how the image will be used, when it will be used, where it will be used, the quantity already used and the size of each specific use in material (e.g., if the material has many different sizes, the size of the image will be used in the largest size).
One often question that comes up with rights-managed licenses is the territory within which the license shall be effective. For example, a U.S.-based company may wish to use an image on its website only within North America. A U.S.-based photographer may have no problem excepting that territory limitation. However, a European photographer may not accept a limited license such as that described, since the proper law of France (or other European nation) may limit territory limitations to a particular nation (example: France). You can’t apply our common law analysis of territory restrictions to European license agreements.
Creative Commons License
A Creative Commons license is similar to a royalty-free license. However, rather than a license being negotiated between the licensee and licensor, a Creative Commons license is standardized license developed by Creative Commons organization. These licenses are standardized and subject to validation by Creative Commons attorney, so you do not need to have an attorney create one from scratch. You simply select the license that applies to your situation and copy and paste the license language. However, you could still use a contract between the parties to set forth details of the transaction that might not be addressed in the Creative Commons license.
How to Create a Photography License Agreement
The photography industry is dynamic, challenging and fast-paced, so although it’s important to pay attention to the details, you need representations and warranties that are appropriate for that context. The following steps will help you craft a photography digital image license agreement that reflects the parties’ wishes, while still being flexible enough in some areas so as to be practical and functional. Depending on your specific needs based on the photograph and the parties involved, you might need to change the license agreement slightly, but these steps will help you create something that should be fairly bullet-proof.
Step 1: Address the license agreement to the recipient of the photographs. While this may seem like a given, it’s imperative that you name the recipient of the photographs specifically. Step 2: Identify the photographs that will be the subject of the license agreement. This might seem simple, too, but don’t leave any room for error. List specifics, like "photos from the November 3, 2015 conference at the Hilton in Austin, Texas," along with the number of images. Step 3: List the rights and limitations for the use of the work. For example, indicate whether the photographs can be used for commercial and/or personal use; if there are geographical limitations, and if there’s any indication that it’s an exclusive right for the recipient. Step 4: Specify a time limit for when the images can be used. This helps protect you , because many times images are used longer than they should be. Step 5: Make any exceptions. If there are certain things that the recipient can’t do, make sure you list them all, so that there are no questions. Step 6: Include a clause that addresses the risk allocation. For example, how are disputes and any litigation going to be handled? Typically, artists use either a simple printed contract or the photos printed directly on the back of the print and signed in the presence of the client. Artists generally also choose to create separate documents for the payment terms. It’s always a good idea to have a sample licensing agreement available as a reference point, so that you can refer to it when drafting your own. Keeping the samples organized and up-to-date will help save time and energy when crafting an agreement. You can find dozens of sites online that offer contract templates, or you can buy any number of books that offer sample contracts that you can reference for specific contract issues. Here are a few you might find helpful: As you know, the craft of photography has changed drastically over the past 20 years, and with the average person having a high-quality digital camera in their pocket at all times, creating contracting opportunities is more important than ever. While the creation of photography digital image license agreements is nowhere near as complicated as, say, a general partnership agreement or other contract, it’s still important to have something written down so that both you and the recipient are protected.
Common Photography Licensing Disputes and How to Resolve Them
Common Licensing Disputes and Resolutions
Disputes over the use of photography images are usually a result of an owner or licensee using a photo in a manner that was not authorized under the license agreement. Typically, these disagreements start from an intent of good faith on the part of the licensee. There can be instances when the purpose for which the image is later used is not one that either party considered when entering into the license agreement. There also may be disagreements over the scope of usage even though the parties intended to enter into a mutually acceptable agreement. Or, unfortunately, the owner of the digital image has authorized the licensee in bad faith to use the image for a particular purpose and then the licensee uses it for a purpose outside the scope of the licensed purpose – and of course, unforeseen and unintended events such as changing underlying technology and the advent of new technologies sometimes overtake good intentions.
Mediation is often the first method of resolution and is usually preferred by both parties. Mediation has the advantage of maintaining the relationship between the parties while seeking resolution of the dispute in an informal way that allows the parties to develop and suggest solutions to close the dispute. Lawyers representing the parties can work through the issues and support, explain, and urge solution development during the mediation. The mediator will encourage negotiation and where appropriate, engagement in developing creative solutions to narrow the dispute. The key is that the negotiated solutions will be owned by the parties.
It is rare that a license dispute over the use of digital images requires formal litigation. But as a general matter, litigation will proceed with the rights of the parties proceeding to judicial interpretation and resolution by a judge or jury.
International Licensing: What You Need to Know
Even with license agreements that define the number of possible jurisdictions (e.g., "exclusive as to Country X") and that provide for the applicability of a specific local law, an additional clause in photography contracts can be useful in case other parties using the image(s) take exception with clauses that limit the scope of rights being granted and/or the applicable law. Those clauses are often under threat by other parties who think the licensing party should guarantee them access to the images and right to use them as they see fit or that the law of their country should apply to the dispute.
So, an additional clause which can be very helpful is: "This Agreement shall be governed, construed and enforced under and pursuant to the laws of the State of California . " Also see the following licensing tips. A license takes effect when accepted by the licensee, either expressly — that is when you or the permission-granting party grant the license expressly — or, impliedly (as a matter of law), — that is when someone accepts the rights described within a license agreement such as through usage or payment. Whenever a foreign entity is looking to enter into an exclusive license agreement for digital images, before entering into a contract with a foreign entity, it is important to talk with a local attorney who can explain the risks involved and how these risks can be mitigated.