Access your workbooks, assignments and other downloads here.
NOTE: In order to save your work, download the PDF files to your computer and then you may enter your info. You'll lose your work if you make edits without first downloading the PDF.
Ready to get Jena's feedback or need to submit a coaching request? Find the links to submit a request for support below.
Find more details about the coaching and critique calls here.
08.08: Usage / License of Copyrights
Written by Attorney Brandon Carlin who specializes in Intellectual Property Law.
Download your workbooks to follow along with the lesson
License of Copyrights
Copyrights are widely spoken about but rarely understood, even among attorneys. One of the main reasons for confusion is that the United States Congress (which alone has the power to enact laws securing the exclusive rights to authors, inventors, and creators) has changed substantial portions of copyright law(s) multiple times in the past fifty years alone.
There is not enough paper in this workbook to fully explain copyright, so this is going to be a quick summation of some of the common words, phrases, and terms you may come across in Photography only.
The intent is that you will soon know enough to be dangerous; meaning that you know enough to secure what protections you need, but not enough to become a professor of copyrights.
This is provided for informational use only and does not convey any relationship as provider of legal services and does not necessarily pertain to your unique situation(s).
Copyrights
Generally, a photographer (“author/creator”) owns the rights to their images, even if they are paid by a client to take the photograph (“work”). You will own a copyright in a photograph once you take the photograph (generally), creating what is known as “common law copyright” to attorneys. Officially registering an image at the United States Copyright Office is a requirement if you are going to file a lawsuit alleging infringement, but it is not necessary to own, license, or sell a copyright.
With a copyright, a creator has the exclusive right to:
- Publish the work in marketing;
- Display the work publicly (social media, for example);
- Create derivative works;
- Create copies of the photograph; and
- License or sell any or all of the rights held in the image.
Explanations:
Derivative Works: Work that transforms or adapts original photographs into new/different photographs.
- Example: A photoshopped, cropped, or edited image. This could be done to add or remove pieces to a set or cropped to highlight different parts of the set or props within the set.
License: The granting of one or more of the rights as defined above.
Terms such as “exclusive” or “limited” relate to the number of rights you are granting, though these terms are not a set and specific legal definition. How one person defines “exclusive” could be defined by another person to be “limited.” Thus, these terms are relative, and must be defined by you within your contracts.
Many, but not all, businesses think that “exclusive” relates to the granting of power number five (licensing rights to the image, particularly the right to use in marketing), wherein if you have an “exclusive license” in this regard then no other entity may use the same photograph in their marketing. However, as just discussed, this is not necessarily correct and can cause great confusion later.
I would recommend that not only do you define your terms, but you should not call something a “non-exclusive” license, as people who do not know copyrights (but think they do) will assume exclusive = good, and non-exclusive = bad.
As the terms for licensing can be confusing, you should absolutely define exactly which of the above rights you are granting in your contract. This will prevent confusion and hurt feelings later if there is a dispute about what clients have or have not purchased.
Selling a Copyright
When you sell a copyright, you are selling all the rights granted as listed above. This means that (unless you contract otherwise) when a customer purchases a full buyout of the copyright, even YOU cannot use your images or else be potentially liable for infringement.
Naturally, this is a very expensive purchase, and you should educate a client that unknowingly is requesting the full buyout. Try to determine why they are requesting this. They may just want no other person or entity to be able to use the images. This could be done with a more specific granting of a license rather than a full buyout.
If you do not educate them, then they will think that you are extraordinarily expensive in relation to other photographers.
Usage
The term “usage” is generally synonymous with rights number one (publish in marketing) and number two (display publicly).
While you may grant rights to the work through a license to a company, you could also restrict exactly how that company is able to market the work. You may also restrict for how long they are able to use the work.
“Unlimited usage” generally means a licensee may use the work however they choose for marketing materials. “Limited usage” requires a definition of how the licensee would be allowed to display the work. If a usage has a time frame on it, say for five years, then the company may use the work until the expiration, at which point the license expires and the company may not use the material without contracting with the copyright owner for more years.
To confuse you more, some people just define unlimited usage within their license grant, and call it an “unlimited license.” The most important thing when you come across the terms “usage” and “license” is that you understand how the contract drafter is defining these terms, because they may, or may not be synonymous.
Sample Terminology used in Estimates
Here is some sample verbiage that was used in past contracts. You may need to tailor to your own unique situation with the client and is provided merely by way of example.
Ten Year License
Client is purchasing licensing of project footage/imagery as “unlimited for advertising usage” for Ten (10) years of national and/or international use. The copyright of all imagery produced by Jena Carlin Photography is owned by its creators, Jena Carlin Photography. Release of copyright can only transpire with the express written permission of copyright owner.
Unlimited License (No Expiration)
Client is granted an Unlimited License in perpetuity as for advertising and marketing usage. All Work created by the Creator (Jena Carlin Photography) and the associated copyright is the sole and exclusive property of the Creator. Grant of any reproduction rights to the Client is conditioned upon receipt of payment in full from Client (or Agency). All rights not expressly granted in the Job Description above shall be reserved by the Creator. Modification of Work and/or incorporation of Work in any layout or concept shall not constitute a joint work or derivative work. If Client (or Agency) wishes to make any additional uses of the Work not detailed in Project Description above, Client (or Agency) shall obtain permission from the Creator and negotiate an additional fee for that use, which may be greater than any Licensing Option originally quoted.
Full Buyout
All Work created by the Creator (Jena Carlin Photography) and the associated copyright therein is being sold to Client. Creator shall retain the unlimited and permanent right to use Work for promotional use only but shall not be allowed to sell or transfer said rights.