This article has been written by Pranjali Nanadikar, pursuing a Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from LawSikho. It has been edited by Zigishu Singh (Associate, LawSikho) and Ruchika Mohapatra (Associate, LawSikho).
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The very first still photo was taken by a French soldier, professor and an amateur researcher Nicéphore Niépce. It took him over a decade to create his very first picture taken by him from his balcony. It is amazing to see how the field of photography has come a long way and careers are now booming in the field. With the rapid increase in advertising, media and fashion industry photography has emerged as a lucrative and thrilling career option for many Indian youths.
In India, images are protected as artistic work under section 2(c) of the Copyright Act, 1957. No matter what kind of photography you do, learning how to license an image is an essential skill if you want to make a business out of your photography practice.
If you are not a copyright holder of a particular image and you want to use that image for your own purpose, then it is essential for you to gain licensed rights of that particular image or images. To gain Licensed rights of images, it is essential to enter into a written Photo Licensing Agreement. Photo licensing agreement has a minimum of two parties involved, that is a licensor who is owner of the copyrighted image and the licensee who wants to purchase the image or the rights of that image.
When do you need a photo licensing agreement?
If a person needs a specific image for personal or commercial use, a photo licensing agreement is the right way to obtain photo usage rights from the photographer. This agreement is generally discussed prior to the sale of licensing rights. There are different terms and conditions which may be applicable. Both the licensor and licensee should have a common understanding on the scope of agreement.
The disadvantages of not having a photo licensing agreement
Photo license agreement protects both the copyright holder and the person licensing the work.
Here are on some of the consequences that can arise from the copyright holder without a photo licensing agreement:
- Less revenue: Merely becoming a copyright owner of your work will not garner any income for you. The ability to sell licensing to commercial and private clients is also necessary to gain additional income for photographers. Without a photo licensing agreement a photographer cannot outline the terms of his licensing image. Photographers can offer the non-exclusive rights to several clients, increasing their revenue for a single piece because they can license it to more than one person. When offering exclusive rights, the photographer can charge a higher fee because that original work will not be available to be monetized in other ways.
- Lack of control : The basic and most important use of a photo licensing agreement is that it allows you to agree on different ways an image can be used. So, it becomes easy to write down the photographer’s specific terms in an agreement and peacefully enjoy the advantages of licensing the image. In other ways, it becomes really easy for the licensee also to know the restrictions and scope of the usage of a photo. Also, it becomes easy for the photographer to mention what type of licenses he wants to give to licensees. For example you might offer only one type of licensure so that the client can only publish images through one venue. They would be able to use the image on the website and can’t print T-shirts with the same image. Using a licensing agreement means that you will be able to set terms and conditions to protect your interest in the work.
Following are some of the consequences for licensee
– Inability to use the image: If any company, individual or small entity wants to use a copyrighted image or images then entering into a photo licensing agreement is the legal way to do it. If you want to use an image for marketing purposes, or even to publish on your personal blog, there needs to be a licensing agreement or purchase.
– Inability to keep others from using the image: If you don’t want to use a stock photo that’s being used by a million different people, you need to either hold the copyright or purchase licensing rights to an agreement that stipulates whether or not you hold exclusive rights to the image.
Common uses of a Photo Licensing Agreement
There are different types of licensing agreements. Here are a some common terms :
– Retail use:
If the client is using the image for his personal use directly or indirectly then a photographer should know that it’s a retail use.
For instance, if you are hired by a magazine to shoot photos for their own advertising campaign promoting their publication.
– Commercial use:
When any client is using a photographer’s image for selling, promoting products, services, business websites, ideas then it will be called as commercial use of the image. It is a profitable use of an image. Professional photographers mostly tend to choose this type of use to maximize revenue.
– Editorial use:
Editorial photography is used for editorial purposes, such as including images in a magazine or News but not for commercial purposes. Editorial rights are typically for images that are used for educational purposes. These rights can be used for blogs, newspapers, magazines, print publications and other educational resources. These all are strictly considered non-commercial uses.
– Social rights:
Social rights means reposting an image on social media. It is a combination of commercial and digital rights, but is specific to images on social media platforms. These rights are the rights given to brands or businesses to re-post or work on social media.
Common things included in a Photo Licensing Agreement
According to various situations, a photo licensing agreement might be very simple or it can be more elaborate with its terms and restrictions. Following on some of the specific terms one should not miss while drafting a photo licensing agreements:
– The Party : Definition of licensor ( the party who is selling the rights) and the licensee (the party who is buying the rights) is mandatory. Also, legal names and legal names of the company should be included. Also, addresses of corporate offices of both the parties should be included and the businesses engaged by both the parties.
– Exclusive or Non- Exclusive: This is the most important clause after the name clause in the agreement. The photo licensing agreement should clearly state if the agreement is exclusive or not. Mostly, parties tend to have a clause of non-exclusivity as the buyer does not want his competitors to use the particular image and gain profit. It is also beneficial for the seller of the rights as he can raise his license fees and don’t need to worry about licensing the image for other parties.
– License fee: The amount of the licensing fee depends on various factors, but essentially on the scope of the license granted. It mainly depends upon factors such as how long and where the image license is valid, whether non-exclusive or exclusive rights of use and granted name is to be on the image or not. There are various tools also to determine the License fee.
– Scope: This clause defines the scope of the usage of the image, whether they can use this image on their web properties in print etc. licensor will mention the scope of the usage of licensing image.
– Time frame: This clause mentions the time period of the agreement so that it is clear for both parties that only the licensee has the rights to the image for a set length of time unless the license is renewed.
– Limitation: The photographer may restrict alteration of the images and sublicenses without prior written permission in this clause. This clause explains whether the licensee should use a photo credit of the image or not.
Which type of image licensing is right for you?
Mostly, photographers are unaware about their rights and their income sources. They should expect a payment for the photography. Entering into a photo licensing agreement, will help the photographers gain a new perspective and choice on a specific revenue. So, the bottom line is that the physical control of photographers has now been lost, but copyright laws remain the same. So, a photographer must keep control of how his images are used and how he can earn more profit from them. It is advisable for both the parties to draft a proper Photo Licensing Agreement from a lawyer especially who has a good knowledge of Copyright law and contract law.
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