Image licensing is one of the most important aspects of photography to understand as a professional. Whether you're working for a publication, letting someone use your images on social media, selling a photo for use as album artwork or any other type of application, you're granting permission on some level for the use of your work.
Every agreement between you and another individual, client, business or corporation and how you let them use your work is essentially an agreement on the rights that you grant them. Or in other words, the license you are giving them.
Why is imaging licensing essential to understand? The specifics of the rights you grant others and how they want/need to use the images are essential to pricing photography.
When someone asks you your rate as a photographer, it's almost impossible to answer accurately unless you know how the images will be used and what rights the potential client needs. Even if you're not being paid as a photographer, it's important to understand licensing because you're still entering into an agreement to grant people these rights whether money is changing hands or not.
In addition, it's important to understand the legal basis for copyright and your rights to your own images.
In this article, we'll take a look at copyright, licensing, common types of licensing arrangements and more.
Disclaimer:
Seek a lawyer specializing in intellectual property if you require legal advice. I am not a lawyer.
This article is a summary of my experience as a professional photographer working in the commercial space in the United States, working with management companies, record labels, publicists and individual clients.
Default Ownership and Copyright in Photography
By default, you as a photographer own the rights — and the copyright — to your images the moment you create them. This is true whether or not you register them with the copyright office in the United States, but this has legal benefits and further protections. These and other moral rights of authors are recognized by 181 members of the Berne Convention that covers the rights of artists and their work, as well as that work as used by others.
As the creator of your photography, you are the sole party to own the work, assign rights and dictate use by others in almost all common situations — until you give others permission for its use.
Note: Being the copyright owner doesn't mean you yourself have complete freedom with your work. You cannot legally use it for commercial use without the permission of individuals pictured in a photograph, for example.
If you have no prior agreements in place (such as a legal agreement if you are contracted to create photography), it is up to your discretion as the original creator on how you assign rights based on your ownership. This can be done in whole or in part. Essentially every single detail of use is your right to dictate, barring any prior agreements.
So what kind of rights can you assign and determine? Let's take a look.
Common of Work Agreements Involving Copyright
There are three main types of work agreements or arrangements when it comes to copyright, which in turn is related to licensing.
These are the scenarios for when you're working for another party directly. If you're just licensing existing photography, skip to the next section.
Commissioned Work: If you are commissioned to create photography but do not agree to work for hire or agree to sell or transfer the copyright, the default is that you own the copyright for the images. All rights you assign must be determined and should be agreed to with the client.
Work for Hire: When you agree to work for hire, either under a contract and/or as an employee, the employer is considered the author and owner of any work created during the term of employment or duration of the job. Under these agreements, you never own the copyright to begin with — that right defaults to the employer.
Buyout, Copyright Assignment/Transfer: Rather than specify individual rights, you can assign the entire copyright to another party. This is also called buyout, but note that this arrangement differs from work for hire. One interesting note is that in the US, a transfer of copyright can be terminated after the duration of 35 years.
It must be noted that “copyright grab” photo releases fall under this category of copyright assignment.
Types of Licensing Agreements
When it comes to licensing, there are two main general types: unlimited or limited.
Unlimited Use / Royalty-Free: You as the creator and licensor own the copyright, but grant broad rights to a party under an unlimited use arrangement. This use can be defined as unlimited across any and all categories of use (editorial, commercial, personal) without restriction. An unlimited use license does not give the right to sell the image itself and does not assign copyright. A single fee is made in this license that covers all usage, with no entitlement of royalties or additional payment for any subsequent use or placement. Unlimited use licenses are most commonly granted with stock photography or other media that's licensed such as music, beats, etc.
Limited License / Rights Managed: You own the copyright and are granting specific rights to a party. Any and all rights and limitations can be dictated. There are two types of limited licenses relating to how many parties are given rights to a work.
- Exclusive: An exclusive license grants a single client/party as the single authorized party to use the image or images as specified by the agreement. This may be a common ask in commercial use when a client doesn't want market competition or dilution of the value of an image with other uses or placements.
- Non-exclusive: Unless otherwise specified as exclusive, all other licenses default to non-exclusive licenses, where the licensor is free to reach other agreements with separate parties for the same image or images.
Recommended Licensing for Photographers
Most photographers should be looking to prioritize the following types of licenses:
- Commissioned work where you own the copyright
- Limited licenses
- Non-exclusive terms
Negotiating these aspects of an agreement gives the photographer the best business protection and opportunity to be compensated proportionate to the use and importance of the work. The licenses are most directly proportionate and tied to the exact use, in contrast to broad licenses that cover many types of potential use.
Licensing/Work Situations Photographers Should Avoid Without High Compensation
In contrast, you should avoid the following UNLESS you are extremely well compensated:
- Work for hire
- Buyout/Copyright transfer
- Exclusivity
These types of licensing and work agreements give the broadest rights. If a client truly needs these expansive rights, they should pay handsomely for that privilege.
Many potential clients see buyout as an ease of use option. They don't really need the rights it conveys or intend to use them in as extensive a manner as the license allows. What they really want is the right to never have to think about the photographer ever again. Buyout simplifies their business and limits their liability, as they now own the images.
Categories of Use for Licensing Photography
Now that we've covered the main types of work and licensing agreements for photographers, let's dive into the types of details that can and should be dictated in a rights managed license.
By use, the main types of use dictated by license agreements may be generalized as personal, editorial or commercial use. Not all use is equal, which is a critical reason why charging an hourly rate as a photographer is almost never the best option.
Personal Use: Images for private display and enjoyment would fall under personal use by an individual rather than a brand or company. Wedding photography would fall under this category.
Editorial Use: Editorial use of photography includes journalism and formats designed to educate or describe a news story or event. Use in documentaries, text books, or concert reviews or news articles fall under this category.
Commercial Use: Commercial use is generally used for the promotion and advertising of a brand, service or product, as well as the direct sale of an image itself or as part of a product. Images printed and sold as merchandise or an image used as an album cover are included as commercial use.
Within these general categories, there are many different distinctions that are useful and even necessary to make. These include determining the exact use and limitations, particularly within the commercial category of licensing.
Types of Commercial Licensing
Within the category of commercial licensing, there are additional distinctions that can be detailed in a license (and a legal contract to describe the agreement). These include subcategories for:
- Publicity
- Advertising
- Marketing and promotion
- Retail and product
- Internal use
- Public display
- Point of sale
There are more specific types of commercial use than this list. The important takeaway here is that the use and format can and should be described in as specific as detail as possible when making licensing agreements.
Often, “promotional use” is a broad category that is often requested in the music industry. Commercial use broadly means that it may be used to generate income, either directly or indirectly. As such, even licensing for social media use by a band may fall under publicity and promotion, even if the social post itself is not advertising tickets or used as admat (advertising material such as a tour poster featuring tour dates or an artist's logo).
Other Specifics of Image Licensing
Beyond the general type of licensing and any further specifics, licensing agreements can include limits or prescriptions of the following:
- Duration (start and end dates for use)
- Format or medium or channels of use
- Market (worldwide vs a specific country or region)
- Industry
- Quantity (if being printed/reproduced)
- Transferability of rights
- Permissibility of derivative works
- Requirement for attribution
The details matter. In a legal licensing contract, almost any and all use can be dictated and limited. The above are just a few of what can be commonly included in a licensing contract for the use of photography and related conduct.
Beyond Image Licensing: Photo Agreements and Contracts
Beyond the above, there are other aspects of photography agreements that should be clearly agreed on that are just as essential as the types of licensing you agree on. In a formal photography contract, any and all aspects of what you are delivering, especially for original commissioned work where you're not licensing a single image, should be specified.
These details are not necessarily part of the image license (rights) that you are assigning, but the are essential to a photography agreement, including:
- Quantity of images
- Format (JPG vs RAW vs TIFF, etc)
- Turnaround time
- Description of work
- Payment and deposit schedules
- Late fees
- Legal indemnification
- Repayment for expenses
- Breach of contract
- Amendments
Anything and everything can be described. With a licensing contract, it's a distillation of the agreements on both sides for what they are agreeing on when it comes to the rights and deliverables of a job.
Understanding Licensing is Applicable Without a Formal Contract
Many photographers work without a formal contracts that detail licensing. This can be legally risky, but it's a real world situation so many freelancers enter into daily.
However, just because you didn't sign a contract doesn't mean the fundamentals of licensing don't apply. Unless you sign a contract assigning your rights away or are in a work for hire agreement as an employee, your moral rights as the author of creative works still apply. So too do your rights to assign and limit use.
Even if you don't sign a formal contract, you and your clients are entering into a constructive agreement. This agreement can form an implied license can be legally upheld when you receive consideration (payment) for an understood use.
With agreements, context is important, so if you have written documentation (such as an email thread) that clearly outlines use, this is legally important. For this reason, it's always in your best interest to state and get agreement to specific use even as an agreement rather than a contract.
Photographers: You are in Control
I want to leave you with this parting thought: It is your responsibility as a photographer to understand image licensing, copyright law and your rights as a creative as a whole. You cannot successfully advocate for your best interests or your value without this knowledge.
Furthermore, you cannot rely on clients for their expertise. It's a common misconception that if you pay for photography, you simply own the images outright, which can be true, but not always. It all depends on the licensing agreement you strike.
It falls on the client to know how they want to use the images. But even if they are the end user, they don't necessarily understand licensing and copyright. That's your job. It falls on the photographer to educate clients on what's proper, not just from your own interests, but as far as legal and industry standards.
A huge part of being a professional photographer working in the commercial space is understanding licensing. Without this understanding, it's almost impossible to price your work for its use and value. You must be able to educate your clients, manage expectations and look out for your best interests. No one else will do this for you.
When someone asks you, “What's your rate,” you should immediately think, “What's the use?” From there, every aspect of work and licensing is up to negotiation. Every single specific criteria for what you deliver, how long you work, and dozens of other seemingly small details should be agreed on — ideally in a formal, legal contract. But that's a topic to discuss in another article.
I hope this article has been helpful in understanding the framework of copyright and licensing, as well as how these complex system relate to your privileges as a photographer. These topics are not intuitive. Understanding them takes experience, reading and research. I'd urge you to look into this topic and to continually refresh your understanding so that you're empowered to advocate for your own rights and value as a creator as fully as possible.
