If you’re a photographer, chances are your goal is probably to earn money from your photographs or license images out for certain uses, at the very least.
If so, you’re going to need some basic knowledge about photo usage rights and how to license images correctly. Fortunately for you, an extensive spectrum of licensing agreements is available to cover all different types of usage – from only strictly limited rights to exclusive rights of use! We’ve outlined everything you need to consider when licensing photos.
An Overview of all the Topics:
Granting photo usage rights for an image according to copyright law
In order to license images and grant photo usage rights, you need to be either the author of the images, or otherwise authorized to license the images. For example, agencies are also authorized to license images if the author has contractually allowed them to be granted.
The author is someone who has created a work protected by copyright law. The author has the sole right to determine when and how the work is used for commercial or other purposes.
Image copyrights exist to protect creators and their work.
As a photographer, you are automatically the author and, therefore, the owner of all rights to your photos. You alone determine to what extent you grant the image user rights of use by granting image licenses.
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The most common types of use in photography
A license is a contract between licensor and licensee. Image licenses regulate the scope of use as well as the types of use and if applicable, the limitations of use.
Through the image licensing agreement, the licensor grants the licensee photo usage rights for an image for a fee , also known as the licensing fee. The licensing agreement allows the licensor to market his or her work or the work on which he/she is the rights owner by entitling usage rights to the licensee. Gratuitous image licensing agreements also exist, for example Creative Commons licenses .
The types of use describe the content-related configuration of use. The most common types of use regulated in image licensing agreements are:
For example, if you want to use an image for a print brochure, you need a license agreement for the print use and you also have to think about where, when and in which edition of the brochure the image should be distributed.
This is important for determining the contract’s provisions
Freedom of contract means that there are no specific limitations concerning the parties or subject matters of a contract in regard to photo licenses.
A particular format is not required to conclude the agreement. Theoretically, an oral agreement – excluding specific exceptions – is also sufficient.
That being said, photo licensing agreements should always be concluded in writing. When a license is not in writing, the content of the agreement can be undermined by unreliable witness testimonies. In a worst-case scenario this results in a he-said-she-said style dispute. In the case of a dispute over the extent of the photo license, a written agreement provides crystal clarity.
There are indeed no binding content-based requirements due to the freedom of contract, however some points are typically regulated in a licensing agreement when licensing images:
One of the first things you can decide on when licensing images is the types of usage rights you would like to grant. There are two types – non-exclusive rights of use and exclusive rights of use.
Non-exclusive rights of use authorize the licensee with the rights to use a work only in the predefined way that is allowed. An important point is that this does not allocate photo usage rights exclusively. That means that the author or the rights owner can allocate non-exclusive usage rights to multiple people at the same time.
If exclusive rights of use are granted, the licensee has the exclusive right to license images that they own the rights to. Even the author may then no longer use their own work unless something else has been agreed upon. Additionally, you can contractually determine that the use remains reserved to the author.
Owners with exclusive rights of use can sue for copyright infringement: unlike an owner with non-exclusive rights of use, an owner with exclusive rights of use has the so-called negative right of prohibition. That means he or she may prevent actions that compromise the uninterrupted use of the work as agreed upon. The owner with exclusive rights of use can therefore act against impermissible uses, for example by asserting injunctive relief.
All usage rights can be limited temporally, by content, or spatially. The duration of use is not automatically unlimited. It can be set by the licensor.
When licensing images, usage rights can be limited to commercial or purely private use. The use of the image can also be spatially limited to a specific country or continent.
Due to the global accessibility of the content on the internet, agreeing to a geographically limited image license is not very sensible.
In Germany for example, if it is not clear from the contract to what extent the rights of use have been granted, the so-called purpose transfer principle applies. It means that the rights of use in doubt are only granted to the extent that is definitely required according to the purpose of the agreement.
In order to avoid potential disputes, it is helpful however to formulate the licensing agreement as precisely as possible and also to determine and uphold the purpose of the agreement.
After it is determined whether exclusive or non-exclusive rights of use have been granted through an image licensing agreement, you should also determine the ways in which the image may be used. A type of use is clearly definable – this refers to whether the work will be used technically (like scanning, copying, printing, CD burning) or commercially (like distribution, further utilization) .
The type of use can apply to the regulation of online or offline use, the use of print media, the editorial or commercial use or use for promotional purposes. The author or the rights owner can grant the licensee the right to use the work for single, multiple or even all types of use.
The designation of the author should also be foreseen in the image licensing agreement. The author may decide whether he/she has to be named and can contractually determine it.
If nothing regarding the designation is agreed upon, it is generally the case that the author is to be immediately named on the work. Many licensees are unaware of this, so an explicit provision regarding the designation of the author is recommended.
It is also possible to agree upon where the author should be named. Should the licensee indicate the full name, an abbreviation, a pseudonym, etc.? Is he/she allowed to decide the designation of the author entirely? All of these options can be contractually agreed upon.
The licensor can also decide if and to what extent the licensee is entitled to a right to edit. In this regard, there is nothing that cannot be agreed upon. You can for example come to agreements on whether the licensee may fully redesign the image or whether only minor revisions can be made, such as size and color. A complete list of editing prohibitions is also possible.
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In the license agreement, the authorization to issue sublicenses and transfer usage rights should additionally be foreseen. It is thereby determined, whether the licensee is allowed to grant his or her own sublicenses, or may completely or partially transfer usage rights for an image to a third party. Those can be non-exclusive or exclusive rights of use.
You can only transfer usage rights that you own yourself. The consent of the author or the rightsholder is absolutely required for granting rights of use to third parties.
In addition, a rights guarantee in the photo licensing agreement can be useful. It confirms that the licensor really owns the usage rights and is allowed to transfer them. In order for the licensee to be exempted from third-party claims, a liability exemption must be agreed upon.
If a third-party asserts claims against the licensee (e.g. someone who did not agree with the transfer of a photo on which he is depicted), the licensee may assert claims against the licensor if the licensor was not entitled to grant the relevant photo usage rights.
If the photo licensing agreement concerns the granting of rights within the scope of a commissioned work, it is recommended to adhere to the purpose of the commission. This helps later with the interpretation of the extent of the license, in the event that something has not been agreed upon or something has not been agreed upon clearly enough.
In order to avoid conflicts with the licensee, the licensing provisions should be defined as precisely as possible. The more exactly the licensing agreement determines the extent of the use, the types of use, and the limitations of use, the more legally sound the agreement is for both parties.
Do you want to end a licensing agreement? Terminating an agreement conforms to the common rules for continuing contracts. If the agreement was entered into for a specified duration, it automatically ends upon the expiration of the duration agreed. If the licensing agreement is for an unspecified duration, you need a declaration of intention from one party (unilateral termination) or both parties (mutual resolution).
In Germany, a continuing contract can be extraordinarily terminated by the party concerned under certain circumstance, even if the contract does not contain a corresponding provision. A grounds for termination exists if the continuation of the contractual relationship is not reasonable after weighing the interests of both parties.
This can include a breach of contract or non-performance, for example . The terminating party must first, however, give the other party the opportunity to eliminate the deficiency unless the deficiency is very severe. In the case of a unilateral termination by notice, eventual termination notice is required; any periods of notice must also be respected.
Would you like to find out where your images are used on the internet?
Remuneration models in practice
The remuneration can be determined freely. So it can be arranged whether the remuneration should occur and, if so, how and when it is to be paid. The amount of the licensing fee depends on various factors, but essentially on the scope of the license granted.
Which types of use are permitted, how long and where the image license is valid, whether non-exclusive or exclusive rights of use are granted and whether the author is to be named also play a role in this. Referencing the price list of others in your industry is a good way to get a general idea about pricing for comparable image licenses on the market. Alternatively, many stock agencies also offer calculation tools that give a rough overview of what amount is usual for which types of use.
It’s also worth noting that there are also variations in remuneration models. A common type of remuneration is the percentage compensation model. It is oriented toward the net sales revenue of the licensee and lies between 3.5% and 12%. Of course, this amount also varies depending on the specific negotiations between the contracting parties. Also common are flat-rate license fee models, which can be calculated using a unit license fee and a minimum license fee.
You can also combine compensation methods with one another; an example of this would be agreeing upon a percentage compensation based on revenue and establishing a minimum license fee, which must be paid in case no revenue is generated.
A good assistance for calculating the license fee in the UK is the licensing and usage calculator of the The Association of Photographers Ltd.
