What do you consider "commercial" use of photos?

[DGMPhotography]

So, I've had a couple of inquires come in that's got me questioning, what is considered commercial use of photos?

Typically, when I do a shoot I charge them for the shoot and then they get the photos back digitally and are able to use them, including printing, for any non-commercial use. But I don't exactly have that defined.

Would selling an music album (like an EP) that uses my photo on the cover considered selling the photo? Or would it only be something like selling autographed copies of the photo itself?

 

[snowbear]

Here's one opinion or angle: Photo Attorney: Commercial vs. Editorial Use of Photographs of People

 

[Gary A.]

Commercial = Advertising/Marketing
Editorial = News/Art

 

[table1349]

Doesn't matter one whit what any of us think commercial use is. What matters is how the law defines commercial use. Used for Commercial Purposes Law and Legal Definition | USLegal, Inc.

 

[DGMPhotography]

Okay, maybe I'm confusing "commercial" and "for profit."

Are they the same thing, or different?

Here's what my contract actually says:

The photographs, digital negatives or prints produced by the Photographer are protected by International Copyright Law (all rights reserved) and the Photographer retains the copyright to all photos and images produced. The Client may receive a copy of the digital photographs on disc, if it has been agreed upon as part of the Assignment Package. If so, the Client may reproduce any photos in any manner they like for internal and external purposes. However, the Client agrees to obtain written permission from the Photographer (subject to additional charges) prior to the Client (or its assigned agents) publishing or selling the photographs for profit.

 

[vintagesnaps]

Commercial use includes advertising, promotional purposes, etc. Retail is selling images on products like T shirts, mugs, etc. Editorial means newspapers/media outlets, magazines, etc.

I believe anything making money is considered 'for profit'. Nonprofit would be a charitable organization, social club, etc. that qualifies for nonprofit status (such as 501(c)3, there are other categories too).

Having your photo used on an album cover means you're licensing usage of the photograph. That's done thru a contract that specifies how the image is used and the compensation.

For example, I was taking photos for a local team and one of my photos was used in one of their brochures one season - that was considered one print run. A smaller version of the photo was used the next season farther back in the brochure - that would be extended usage and usually the compensation is less since it's the same photo used in a less prominent way, (And the brochure is for the photographer a 'tear sheet', a copy of the brochure or magazine, etc. where it was used/published.)

For the album cover you're licensing usage because potentially you could use/license the photo in additional ways besides a band using it on a cover. You could later license it to someone else for a specific purpose/usage for a specific period of time for specified compensation.

 

[vintagesnaps]

The contract sounds like the first part covers someone getting a portrait done for their own use. I'd rethink stating that the client can reproduce images in any manner they like, and I'm not sure what internal and external uses means. Seems like it would be better to be more specific rather than leaving the door too open on how photos can be used.

I think saying a client needs permission to use a photo to publish or sell it is where you probably need to license usage instead. If someone wants to use your photo to make money, that gets into commercial or retail use, and you need to license usage and get compensation for that level of usage.

You don't have to reinvent the wheel you know... it's a matter of finding resources and learning what to do and adapting the info. so it works for you.

 

[KmH]

Okay, maybe I'm confusing "commercial" and "for profit."

Are they the same thing, or different?

They are different.
Some 'for profit' uses, both published or for sale, are editorial and not commercial.
But in the context of your contract clause, saying internal and external is meaningless without defining internal/external to what.

You need a qualified attorney to look over your contract.
If you've already had an attorney do that I strongly recommend getting a different attorney to do it again.

For a photography business a qualified attorney is familiar with contract/business law, publication law, & copyright law.
As attorney that specializes in divorces or injury cases would be low on the list of attorneys to make sure your contract isn't chock full of ticking financial time bombs.

Over my years in the business I saw photography businesses close from time to time because their contract had financial time bombs that exploded.

A qualified, preferably Certified, accountant is also needed unless you're very well versed in accounting and tax issues.

 

[DGMPhotography]

The contract sounds like the first part covers someone getting a portrait done for their own use. I'd rethink stating that the client can reproduce images in any manner they like, and I'm not sure what internal and external uses means. Seems like it would be better to be more specific rather than leaving the door too open on how photos can be used.

I think saying a client needs permission to use a photo to publish or sell it is where you probably need to license usage instead. If someone wants to use your photo to make money, that gets into commercial or retail use, and you need to license usage and get compensation for that level of usage.

You don't have to reinvent the wheel you know... it's a matter of finding resources and learning what to do and adapting the info. so it works for you.

So in your opinion, when someone pays you to do a photo shoot, say $250 for portrait session, is that payment only for your time and non-commercial/non-retail usage? Would using the photos in ads or posts on social media be considered commercial?

And what about printing? Do your customers have the rights to print the photos if it's for non-commercial/non-retail use? Like, a framed picture in the hall. If so, how do you justify selling prints if they can print it themselves?

And what about altering the image, or online usage? You give them the non-watermarked photos, correct? What if the client posts a photo with an Instagram filter on it? Or do you allow your clients to only use watermarked/non-edited images?

And then you charge extra (license) the photo(s) if it is for commercial or retail usage, correct?

Would you do an exclusive license for these things (like, only the client will be able to use the photos at this time), or non exclusive? I'm guessing it varies between clients.

I know I've got a lot of questions, but I would much appreciate you taking the time to answer them!

 

[KmH]

Photos used in advertisements would be commercial.
Photos used on social media would be editorial.

Most print labs are very wary of printing copyrighted photos not owned by the person wanting prints made.

Copyright, that is automatically given to photos we make, is the only thing of real monetary value any photographer produces.

Giving away or other wise eroding your copyrights is not a good business practice.