Licensing an Image

[lennon33x]

So I'm doing a shoot of a veterinarian that I work for/with. I am having him sign a contract (and this thing covers EVERYTHING). I have a question about licensing.

I've included a disclosure about licensing in the contract. It reads as such:

"Licensing of images by the Client is strictly prohibited. Client may not, without the expressed written consent by the Photographer replicate, edit, crop, or otherwise alter the image in anyway. Any alterations made to the images without express written consent of Photographer are subject to federal law, and Client will be held responsible for any and all applicable fees, including attorneys fees and court costs."

I am allowing him to use the images for replication and promotion of his business (i.e. his website, his social media, personal Facebook, etc.) with specific restrictions.

In regard to licensing, if a magazine wants to do an article on him to promote his business, but wants to use my image, that's a restriction of licensing by the contract correct? And that they would have to get my permission? Or is this one of those gray areas of law, and without expressed language to include it, they can use it and get away with it?

I know someone's answer will be consult an attorney, but I didn't know if anyone had experience with this. Thanks

 

[tirediron]

It would depend on the wording, but I would think that you could make a case for self promotion by using the story in a magazine.

 

[KmH]

"Licensing of images by the Client is strictly prohibited. Client may not, without the expressed written consent by the Photographer replicate, edit, crop, or otherwise alter the image in anyway. Any alterations made to the images without express written consent of Photographer are subject to federal law, and Client will be held responsible for any and all applicable fees, including attorneys fees and court costs."

Yep. Have a qualified attorney review and re-write your contract.

That is a contract clause that mostly reiterates some of the rights included with your copyright.

"Sub-licensing of the images to 3rd parties is prohibited."
"Revelia Photo retains copyright and all other rights, and without the expressed written consent by the Photographer Dr. Doolittle Veterinary Clinic and Hospital is not allowed to edit, crop, or otherwise alter the image(s) in any way."

Use license - "Revalia Photo grants Dr. Doolittle Veterinary Clinic and Hospital non-exclusive use of these images on the business web page(s), and in online social media.
Images may be no larger than 400 x 400 pixels for any online use."

I highly recommend also specifying a time limit for the use.

For more information about use licensing and access to a use license generator visit Business Resources | American Society of Media Photographers

 

[lennon33x]

That is a contract clause that mostly reiterates some of the rights included with your copyright. "Sub-licensing of the images to 3rd parties is prohibited." "Revelia Photo retains copyright and all other rights, and without the expressed written consent by the Photographer Dr. Doolittle Veterinary Clinic and Hospital is not allowed to edit, crop, or otherwise alter the image(s) in any way." Use license - "Revalia Photo grants Dr. Doolittle Veterinary Clinic and Hospital non-exclusive use of these images on the business web page(s), and in online social media. Images may be no larger than 400 x 400 pixels for any online use." I highly recommend also specifying a time limit for the use. For more information about use licensing and access to a use license generator visit Business Resources | American Society of Media Photographers

So my example is more of a sub-license?

 

[lennon33x]

That is a contract clause that mostly reiterates some of the rights included with your copyright. "Sub-licensing of the images to 3rd parties is prohibited." "Revelia Photo retains copyright and all other rights, and without the expressed written consent by the Photographer Dr. Doolittle Veterinary Clinic and Hospital is not allowed to edit, crop, or otherwise alter the image(s) in any way." Use license - "Revalia Photo grants Dr. Doolittle Veterinary Clinic and Hospital non-exclusive use of these images on the business web page(s), and in online social media. Images may be no larger than 400 x 400 pixels for any online use." I highly recommend also specifying a time limit for the use. For more information about use licensing and access to a use license generator visit Business Resources | American Society of Media Photographers

Keith, in that website, they talked about editorial licensing. Could I just put a restriction on editorial licensing?

And how do I look up the current size of the images on their website?

 

[Gavjenks]

Not letting them sublicense it or restricting where it is used? Fine, great! But:

I highly recommend also specifying a time limit for the use.

Um, gross, no. I would never work with a photographer that tried to pull crap like that.
Are video game DRMs not draconian and arbitrary enough for you, that PHOTOS now need to have built in time bombs for no apparent reason other than making a photographer more money?

Photos are non perishable goods and don't require maintenance from the photographer so there's no reason why they should ever expire other than greed. And it comes across exactly that way to a client reading that clause. Which would be a huge red flag and make me run for the hills personally.

 

[lennon33x]

Not letting them sublicense it or restricting where it is used? Fine, great! But:

I highly recommend also specifying a time limit for the use.

Um, gross, no. I would never work with a photographer that tried to pull crap like that.
Are video game DRMs not draconian and arbitrary enough for you, that PHOTOS now need to have built in time bombs for no apparent reason other than making a photographer more money?

Photos are non perishable goods and don't require maintenance from the photographer so there's no reason why they should ever expire other than greed. And it comes across exactly that way to a client reading that clause. Which would be a huge red flag and make me run for the hills personally.

I'm with you on this one. I don't want to be greedy. And truthfully, I'm not sure I want to restrict size either. The truth is, I still own the images. And he has the ability to use them. I just don't want them being published/used in places without my knowledge or permission.

 

[Gavjenks]

I'm with you on this one. I don't want to be greedy. And truthfully, I'm not sure I want to restrict size either. The truth is, I still own the images. And he has the ability to use them. I just don't want them being published/used in places without my knowledge or permission.

The only reason you still own the images is because you didn't write in your contract that you sold the rights to the client.
As a client, I expect a discount for that, and for any other restrictions you place on me. Restrictions make me less money, so your images are worth less to me, and I'm not going to pay you as much.

Even saying "only business webpages or social media is a potentially HUGE restriction that depending on the business, might warrant me demanding a 40-50% discount over competing photographers in the area who do not require such restrictions. Because basically you're telling me I can only use this image in like half of the situations I might want to use it in (no posters, no flyers or direct mail, no business christmas cards or whatever, no advertising on other websites besides my own that aren't social media, like pet forums or whatever, etc. etc. etc.).

So I'm only willing to pay you for the essentially half an image that you're giving me, compared to the other guy who lets me use it however I want. And don't think that you still get to charge full rate for your time either. As a client, I don't care about your time versus your equipment versus your licensing. I care about my final product and how much money it's going to make me. Your restricted product makes me half as much money? I pay you half as much, for the entire cost. If that doesn't leave you enough money for your time, then maybe you should reconsider your licensing...



And if you put a time limit on it, if you expect me to not be insulted, then I expect a discount again proportional to how long I plan for that photo to be relevant to my business. For example, let's say you have a 3 year time limit on your photos, and you're giving me a picture of a cute dog for my veterinary business. Dogs will always be relevant: I could and very well might use that photo for the next 30 years. So if it expires in 3 years, I would have to schedule 10 photoshoots with similar licensing to get the same value out of it as I would a competitor not requiring that restriction.

Thus, your photos should cost 10-20% (20% because I might retire sooner or whatever, covers the odds a bit mroe fairly) as much as the competitor's who doesn't require that restriction, otherwise it's a dumb business decision for me to go with your services.





Does that make sense?
Hopefully the theme of this post is clear by now

 

[KmH]

Keith, in that website, they talked about editorial licensing. Could I just put a restriction on editorial licensing?

And how do I look up the current size of the images on their website?

You can restrict whatever you want to restrict, and allow whatever you want to allow.

On their web page you can right click and look at the web page source code. The source code will tell you the size of the image
You can also get a good idea of the image pixel size based on the resolution your computer display is set to.

Defining a time limit for an advertising use is a common commercial photography business practice.

 

[lennon33x]

The only reason you still own the images is because you didn't write in your contract that you sold the rights to the client. As a client, I expect a discount for that, and for any other restrictions you place on me. Restrictions make me less money, so your images are worth less to me, and I'm not going to pay you as much. Even saying "only business webpages or social media is a potentially HUGE restriction that depending on the business, might warrant me demanding a 40-50% discount over competing photographers in the area who do not require such restrictions. Because basically you're telling me I can only use this image in like half of the situations I might want to use it in (no posters, no flyers or direct mail, no business christmas cards or whatever, no advertising on other websites besides my own that aren't social media, like pet forums or whatever, etc. etc. etc.). So I'm only willing to pay you for the essentially half an image that you're giving me, compared to the other guy who lets me use it however I want. And if you put a time limit on it, if you expect me to not be insulted, then I expect a discount again proportional to how long I plan for that photo to be relevant to my business. For example, let's say you have a 3 year time limit on your photos, and you're giving me a picture of a cute dog for my veterinary business. Dogs will always be relevant: I could and very well might use that photo for the next 30 years. So if it expires in 3 years, I would have to schedule 10 photoshoots with similar licensing to get the same value out of it as I would a competitor not requiring that restriction. Thus, your photos should cost 10-20% as much as the competitor's who doesn't require that restriction, otherwise it's a dumb business decision for me to go with your services. Hopefully the theme of this post is clear by now

The only real restrictions he has is licensing. He can use it for his business, pamphlets, cards and any business paraphernalia associated with his business that he initiates (i.e. Another company can't come to him and ask to use the image for their business without my consent). He has no restrictive uses in regard to the business. It's the licensing or portrayal that he owns that I have an issue with.

I've known him for years, and this contact is borderline ridiculous. But because I know he has the potential to do some crafty sh*t, I want to make it clear as to what he has permission to do. And truthfully, he's a client that, if he doesn't want a contract, I don't care doing business with.

I'm giving him a HUGE discount, comparative to others in the area. I need the headshots for my portfolio, but I'm not just going to do it for free.

 

[Gavjenks]

To be clear, I was responding to this quote from KmH regarding the "no christmas cards" part:

Use license - "Revalia Photo grants Dr. Doolittle Veterinary Clinic and Hospital non-exclusive use of these images on the business web page(s), and in online social media.
Images may be no larger than 400 x 400 pixels for any online use."

But yes, okay. If you're giving him a deep discount, then you have good leverage to make whatever licensing demands you see fit to prevent his craftiness. And I don't think you should be afraid to tell him that in person as explanation if he coomplains (not the "you're a crafty SOB" part, lol. Just something like "This helps make sure I get fairly compensated for the extent that the images are used. I am giving you a large discount in part because of your images being partially restricted.")

Go for it!

 

[vintagesnaps]

A contract for usage should be for specific use and could be for a particular time limit; it depends. A contract could be for one time usage or multi use. There could be a possibility as technology changes that you may want or need to change the format or re-edit your photos, or his business could change, etc. so I don't think a contract being unlimited and lasting from now on is necessarily a good idea.

I find what you wrote to be rather wordy and repetitive yet not clear enough. I'd look at sample contracts to find out how to phrase what you want to include in the contract. I was going to offer the same resource that Keith did - thru ASMP's site I found a book by Tad Crawford I bought that has sample forms.

Reading that you feel the guy has the potential to do some crafty sh*t is a red flag - maybe you're too far into this to consider cancelling but it doesn't seem like it'll be worth it for a head shot - that you're underpricing. I'd let him find another photographer (who he might just have to pay the going rate) and then find someone else that you can work with to get a portrait for your portfolio. With this type person having a lawyer advise you on the contract would be something to consider.

I think usually if a magazine or newspaper uses a photo given to them by the person or company featured in an article, it will indicate Provided or Submitted under the photo. I'd think such usage would mean a specific contract for one time use for publication (or the paper or magazine may want to send their own photographer).

 

[lennon33x]

A contract for usage should be for specific use and could be for a particular time limit; it depends. A contract could be for one time usage or multi use. There could be a possibility as technology changes that you may want or need to change the format or re-edit your photos, or his business could change, etc. so I don't think a contract being unlimited and lasting from now on is necessarily a good idea. I find what you wrote to be rather wordy and repetitive yet not clear enough. I'd look at sample contracts to find out how to phrase what you want to include in the contract. I was going to offer the same resource that Keith did - thru ASMP's site I found a book by Tad Crawford I bought that has sample forms. Reading that you feel the guy has the potential to do some crafty sh*t is a red flag - maybe you're too far into this to consider cancelling but it doesn't seem like it'll be worth it for a head shot - that you're underpricing. I'd let him find another photographer (who he might just have to pay the going rate) and then find someone else that you can work with to get a portrait for your portfolio. With this type person having a lawyer advise you on the contract would be something to consider. I think usually if a magazine or newspaper uses a photo given to them by the person or company featured in an article, it will indicate Provided or Submitted under the photo. I'd think such usage would mean a specific contract for one time use for publication (or the paper or magazine may want to send their own photographer).

Is 5 years long enough?

 

[Gavjenks]

A contract for usage should be for specific use and could be for a particular time limit; it depends. A contract could be for one time usage or multi use. There could be a possibility as technology changes that you may want or need to change the format or re-edit your photos, or his business could change, etc. so I don't think a contract being unlimited and lasting from now on is necessarily a good idea.

Can you maybe give an example of a situation where that would actually be necessary?

Services like re-editing or changing format seem like they should be offered as just that: services that the client can opt for if they so choose later on, perhaps for additional a la carte fees. Not weirdly mandated by a time limit expiring. If I don't WANT to have my images re-edited or reformatted, I can't think of a reason why I should be forced to.

Framed as an optional service, it becomes an attractive feature of your business and makes me want to do business with you. Framed as a time limit introduces liabilities and leaves me with less control and makes me want to avoid you like the plague. It is completely analogous to video games: Installing DRMs in the game that make it unplayable unless I have a verifying internet connection with you is horrible and I never buy things from companies that do that, and it has sunk many games' potential due to other people feeling the same (for instance Spore). If they sold it for way less than a normal game to compensate for me essentially renting it from them, then maybe that would be okay. But they never do. They charge full price and act like it's just common sense/no big deal that you shouldn't own a game you buy... No thanks.

Again, deep discounts to compensate for the fact that I now have to rent your images? Sure, maybe. Just throwing it into a contract with no major concessions to make up for it? Not so much.




"One time use" is a totally different concept that seems much more reasonable. Like "only for this magazine's cover photo" or something. But notice the difference between that and a time limit: If I want to reprint the magazine later in, say, an anthology or collector's edition or something, it seems completely bonkers to have a contract where I am not allowed to do that just because 5 years have passed. I'm hamstringing my business by agreeing to such things, whereas the limited one-time-use thing isn't a problem there and is much more intuitive WYSIWYG.

 

[lennon33x]

Then, new question. How long should I hang on to the negatives?