Are you a content creator who has been approached by a brand that wants to use your photos? Are you a burgeoning professional photographer, who wants to syndicate your images? Maybe you want to collaborate with another person, whose images you’d like to post on your social media accounts or website. In these situations, you might want to consider entering a licence agreement. But before you sign anything, here are a few things you should know.
01. What is a photograph licence?
A licence is a way for the copyright owner of an image – usually the photographer – to give another party permission to publish or otherwise use it. Because the creator retains copyright ownership, a licence is similar to the concept of borrowing. The photographer, known as the “licensor”, is granting a licence to another person, known as the “licensee”, to use the image in a certain way. It is important to remember that licences can be written either in favour of the licensor (creator), or the licensee (borrower). Importantly, almost anything in the licence can be fine-tuned, adjusted, or negotiated!
For more on copyright and social media basics, see my post, Is someone stealing your Instagram posts?
02. What do photograph licences look like?
Licences can take many shapes. Where they are straightforward or one-sided, they might be only a few paragraphs. They can also be included in larger contracts, for example within a 50-page technology contract between a software developer and a big bank. But where the parties are an individual content creator (such as a lifestyle blogger) and another company (perhaps a fashion brand), photograph licences are typically written as letters, and may only be a few pages long.
03. The ‘Licence Grant’
The grant of licence is the key, operative provision of a licence. This is where permission is granted by the licensor (creator) over to the licensee (borrower), and describes what that permission looks like. The grant is usually just one paragraph or so, and contains a lot of legal jargon. Essentially, it will cover whether the licence is exclusive, how long it lasts for, the type of exploitation that is allowed, and the media in which the photograph will be published. It will also typically cover whether the licensee can sub-licence the photo to another third party.
04. Are the permissions narrow, or wide?
Under What is a photograph licence? above, I mentioned that the licence can be written from the perspective of either the creator or the borrower. The licensee will likely want to borrow the image and use it any way she wishes — modifying it and sharing it in unlimited ways. On the other hand, the licensor will want to limit the scope of the licence she grants, and thereby retain tighter control of how the photograph is used.
Questions that need to be answered include the following:
- EXCLUSIVITY: Once the licensor (creator) grants the licensee (borrwer) the permission to use the image, can the licensor also publish the photograph? Can she sell it to other people? Or is the image only to be used by the licensee?
- FEES: Is there one fee? Or will there be additional royalties and fees for different types of use?
- CREDIT: In addition to cash money, will the licensor be credited? Will there be a link back to her website portfolio, for example? Will credit appear only once, or each time the photo is used?
- EXPLOITATION: How long does the permission to borrow last? Is it perpetual, which means it goes on forever? Can the licensee publish the photograph on one website only? Or can they put it on different platforms and social media accounts? Can they put it in print (magazines, books, etc.) as well?
- MODIFICATIONS: Are modifications permissible? Can the licensee photoshop the image, or significantly distort it?
- PURPOSE: Is the photograph for commercial advertising, or is it for educational or charitable purposes? Does the licensor want to prevent her photograph from being used in a certain way, for example in connection with political advertising, or endorsing products she does not agree with?
- REVOCABILITY: If the licensee does something that the licensor disagrees with, or otherwise breaches the contract, can the licensee revoke the permission? Or is the licence irrevocable?
For more on things to consider when using photos that depict people, check out my post, Using someone’s image in advertising.
05. The fine print and scary stuff like lawsuits
Image that the licensor (creator) gives the licensee (borrower) a photograph, which the licensee pays for and then publishes on their website. A few weeks later, the licensee gets an email from a very angry photographer who claims that the photograph is actually her intellectual property! Say that photographer then decides to sue the licensee for copyright infringement. They sue the licensee because it’s on her website, and the original creator is nowhere to be found. Does that sound fair? Maybe not, if you’re the licensee! So what happens? Who is responsible – the creator, or the borrower?
This scenario is typically covered in clauses regarding warranties, undertakings, and indemnities. These are legal protections that provide certain types of protections and promises, Typically, the licensor will be asked to warrant (promise) that the photograph does not infringe someone else’s intellectual property or privacy rights. Likewise, the licensee will want the licensor to promise to indemnify (take responsibility for) any lawsuits that arise because of the photograph in question. These clauses are very important to review carefully, and can be negotiated heavily. Even small changes in wording can have a big impact, so it’s best to get a lawyer to review.
You have your licence in front of you. What next?
Photographs are deeply powerful tools for content marketing and branding, and can be incredibly personal, too! I hope that this post provided a little bit of insight on the world of photograph licences. It’s always important to carefully read a contract before you grant – or receive – a licence to use a photograph. If you don’t understand something, ask a lawyer – or the person who gave you the contract – for an explanation. If your collaborator refuses to tell you what something means, that could be a red flag.
Creative control and proper payment are things that media lawyers like myself are trained to negotiate and advise on. A good lawyer will also be happy to explain legal jargon in a way that makes sense to you – if your lawyer doesn’t, ask them to!
Featured image by Sarandy Westfall via Unsplash