I’ve got to say that the title of this post is probably among the most boring titles I’ve ever come up with. My apologies. However, as most you of know, success in the business of photography is rarely about exotic adventure, groundbreaking techniques or fancy equipment. Instead, it’s about the simple things you do day and day out that help you make money. Creating a well-written usage license for images you share with your clients and collaborators is just one of those things that keeps the money train going. So here goes!
I was actually inspired to write today’s post after reading about Dina’s experience with photographic thief Shepard Fairey. The reason she was able to achieve a settlement with Fairey was because she wrote down in email form what both she and Fairey agreed to. Nothing fancy – just a summation of the conversation she had with Fairey about how and where he could use her image of a cancer survivor. But, whether she realized it at the time or not, that little summary is what served to define the license that she granted Fairey. When he violated the terms of the license, she was able to go after him.
Before we talk about writing a license, we should first know what one is. In it’s simplest terms, a license is defined as permission. As the copyright holder of an image, it is you and you alone who can give permission to others to reproduce your image. The terms of that permission are what constitute a usage license. So however you want to structure your license is up to you; it can be ten pages of legalese or a simple sentence of common sense language.
Most licenses consist of five components:
1 – Size of the image to be reproduced in the final layout – i.e. will it be small within the ad (or published page) or will it be the “hero” as in full page or close to it.
2 – Nature of publications - Will the client be using the image one time in a marketing brochure or multiple times in newspapers and magazines? Images that are used in a consumer magazine or billboard ad campaign are worth much more to the client than one used in a 1/4 page inhouse brochure.
3 – Geographical area of publication - Will the image be used in a local publication like a neighborhood newspaper? Or a regional magazine? Or a series of national magazines? An image can be used throughout North American or even worldwide. Obviously, the greater the geographic distribution, the greater the value of the image to the client.
4 – Duration of use - Does the client need the image for six months? One year? Or even unlimited time?
5 – Exclusivity - Does the client not want competitors to use the image? Do they want exclusivity within their product category, a given country or worldwide.
It may go without saying, but I’ll say it anyways: any license that you create should address all five points. Knowing that, let’s look at a license that you might write up for a client who wishes to use a 1/2 page image for use in a company brochure.
“Image of boy and girl playing for non-exclusive use by Acme Manufacturing in Swingmaster brochure only. Size not to exceed 1/2 page. For distribution in North America only. No use by third parties. Duration of use: One Year.”
Hopefully you’ll agree that there was nothing fancy in this license. Note how all five usage components were addressed in this brief paragraph. I’ll also point out two very powerful words here: only and no. By using the word “only” you make clear that no other use is allowed other than that specified in your license. Use this word liberally!
The other word that comes in handy is “no.” In the license above, I referenced “no use by third parties” to make clear that the client could not allow anyone else to use the image (as often happens with manufacturers working with distributors and customers). If the client requested a broader license that might include other marketing materials, I’ll often specify “No paid for media advertising including magazines, newspapers and web ads.”
By using the words “no” and “only,” you remove ambiguity from your license -which is critical should you be required to enforce your rights under your license and law.
More and more these days, clients are requesting unlimited use of the images you create for them. But not all unlimited use is created equally. Perhaps the client only needs unlimited use of the images for brochures, inhouse marketing materials, catalogs and company website. Few clients need unlimited international use in billboards, magazine ads and product licensing. So why include that? Furthermore, they rarely need the images for unlimited time. All images have a lifespan after which they become tired and out of date to the client – but not necessarily to you.
Here’s an unlimited use license that I’d create for a client who doesn’t want to have to contact me for every single use, but at the same time doesn’t need expansive unlimited use:
Unlimited, exclusive to exercise and sporting goods industries only use of images by Powergroup Inc only for inhouse marketing materials including brochures, sell sheets and presentations, trade show posters, catalogs, and company website. No use by third parties. No paid for media advertising. Duration: Two years.
When creating a license, try to be as specific as possible. I know it’s tempting to be vague because you don’t want to upset the client. Far better to be clear with the client up front though because enforcing something that the client didn’t think they agreed to is just going to make a mess of the relationship. For the most accurate language, you can refer to the useplus.com website. It’s a free site that will generate license terms for you based on your parameters.
Before you can accurately draft a license, it helps to ask a lot of questions of the client. It’s rare that the client provides you with all the information you need. When you’ve got a client on the phone, you need to be prepared with all the right questions so you can fairly price the job and set its parameters. Also, many of license terms should be included in the terms and conditions of your contract (usually on the back of your main page). For example, things like the start date of the license period, what happens if the client doesn’t pay, changes etc should all be covered in either your assignment estimate or your stock photography invoice.
When it comes to what terms and conditions to use, if you’re a member of the American Photographic Artists (formerly the Advertising Photographer’s of America) or the ASMP, they offer contracts for use by their members. You may also purchase my Commercial Photography Contract Kit from the Photographer’s Toolkit which includes an Assignment Agreement, Stock Invoice, Change Order and a list of 50 questions to ask so that you can accurately estimate a job. Regardless of what terms you use, every single image that leaves your studio should be accompanied by your terms and conditions along with a clearly defined license.
So the next time a fellow artist, book author, client, wedding coordinator, store owner or even your mom asks for a photo, give ‘em your photos with a smile – and a license!