Photo licensing is not the most exciting topic, but it is one of the most important and one every photographer should have confidently mastered, as it has significant consequences on both your income and your ability to protect and control the dissemination of your images. If you are a bit unsure of the ins and outs of photo licensing, take a bit of time to watch this informative video tutorial that will help you master the basics.
Coming to you from Matthew Anderson, this great video tutorial will introduce you to the concept of photo licensing and what you need to know to protect both your intellectual property and the income you are rightfully owed for the usage of your images. One unfortunate truth that you have to keep in mind is that many, many photographers are unversed in licensing, and a lot of brands know this and will try to exploit it to get images at a significant discount or even for free, which is why it is so important to know your worth and just as importantly, what questions to ask of people of brands looking to use your photos to ensure you can control the usage of your images and get what you deserve. Check out the video above for the full rundown from Anderson.
This is one video that I wish would go viral.
I wish all photographers would follow this. When a photographer doesn’t charge license fees, it not only undercuts the market for the rest of us… but also undercuts the very market in which that photographer is hoping to make a living!
There are simply some that aren't confident enough or not running their business well, they leave a lot of money on the table and hope their low rates get them work. It's like trying to explain Intellectual Property Laws to the Chinese.
Great cintent about IP and the value behind!
Our major problem is the unawareness in our society are in. 'Images are available on the web, so it is for free.' This basic assuption I ofen meet talking to people. Also with people who don't want to do something illegal. There is not even a piece of idea that there could be an infringment of a 2nd parties ownership.
As no one else speaks for us creatves we ourself need to educate and try for deeper understanding. The tech companies won't do it, clients follow their interest making money so it remains on us.
Assumptions about "ownership" of images predate digital imaging. Many clients used to assume that if you gave them a piece of film, they owned the image and could use it however they wanted.
Also, while you've identified one major problem, another is a misunderstanding among aspiring photographers that they're selling their time, as if they were glorified burger-flippers. This kind of (forgive me, but it's an accurate description) ignorance is gleefully exploited by executives at large, profitable companies that know better. Pretty much every corporate photo contest that buries copyright transfer or grant of unlimited usage rights in small print is an example of this.
I wish freelancers had a union to help us stand up. Oh, wait, we do:
https://www.freelancersunion.org
Just had a knock-down-drag-out negotiation with a client of 20 years whose new layer abruptly and without warning decided to change our longstanding contract from licensing to Work For Hire and refused to offer any compensation for the additional value. He wanted to grab the copyrights for free. Now, this expectation of ownership isn't unusual when dealing with novices, but this guy is an IP lawyer. Pretty clear which side of the negotiating table he's spent his career on. With novice buyers, it's generally a matter of explaining how a license tailored to meet all their anticipated used can save them money, and when the see this they come around. This guy refused to enumerate any specific reasons for the change. In the past, we've had event clients with perfectly understandable privacy and security concerns about public disclosure of sensitive information presented at their events, and they've bought the copyrights from us for an additional 50% over our licensing contract. This was not such a case. He simply refused to pay anything more, so we worked out a deal with the direct client (not the lawyer) whereby we got the same money for less work. This allowed us to collect the buyout "fee" without making it explicit, which gave the lawyer a way to sign off without appearing to back down.
This is for an annual event, so next year's negotiation should be interesting. We could simply start with a higher base rate that hides the "fee", since we don't quote an hourly rate, just a single number for the whole job (thank you to whoever convinced me long ago not to put hourly rates in estimates and contracts!). OTOH, maybe next year he'll be gone.
Over the years I've come to see presenting hourly rates to clients as a really bad idea, because it converts intellectual property into a commodity and leads to a race to the bottom. This is especially pernicious in markets that have unsophisticated photo buyers who may assume that they're paying someone to push a button and all button-pushers are interchangeable.
Jacques Cornell wrote, “This allowed us to collect the BUYOUT ‘fee’ [emphasis] without making it explicit, which gave the lawyer a way to sign off without appearing to back down.”
Jacques, perhaps your use of “buyout” is colloquial, slang, or something else. Otherwise, the term “buyout” is a vague and often a confusing way to describe licenses that can have different meanings for different parties.
Some clients believe a BUY-OUT to be a non-exclusive, unlimited use of a work (the client gets to use the image in all media for, say, one-year, but can NOT transfer those rights to another party).
While other clients may believe a BUY-OUT is a “copyright transfer,” where the client will own the photograph and its corresponding title and interest (the photographer gives up/transfers ALL rights to his/her photograph).
The best practice is to use exact terms in licensing agreements rather than inexact, confusing terms like BUY-OUT.
See UsePlus.org for the definition of BUY-OUT : http://www.useplus.com/useplus/glossary_term.asp?pggl=1&tmid=10600000
So, if a BUY-OUT means granting unlimited rights to a client, then write the license as “unlimited use” (for a limited timeframe, territory, media, etc.). If a BUY-OUT will provide the client with all rights, copyright interest/title, and ownership, use “copyright transfer,” and confirm both transactions in writing.
FYI: Copyright transfers and other licenses can be terminated (recaptured) after 35-years if a photographer takes affirmative and timely steps to secure his/her statutory rights. See 17 USC § 203 (Termination of transfers and licenses granted by the author): “[i]n the case of any work other than a work made for hire, the exclusive or nonexclusive grant of a transfer or license of copyright or of any right under a copyright, executed by the author on or after January 1, 1978, otherwise than by will, is subject to termination[.]”
I understood "buyout" to mean transfer of copyrights, as that's how I've heard it used among the scores of veteran pros with whom I've worked over 20+ years. Thanks for clarifying its meaning, or, rather, making it clear how unclear the term can be.
FWIW, I don't use the term in contracts. My licensing contract lays out specific usage rights and terms. My copyright-transfer contract assigns "right, title and interest to copyrights".
Interesting that the statutory language you quoted indicates a difference between simple transfer of copyrights and "work made for hire". I hadn't thought of that before, so thanks for raising some distinctions.
Jeez, I had totally forgotten that I'd written an article about this on my biz' blog way back in 2015. The above video does an excellent job of deconstructing some misunderstandings, but here's my article, which boils it down to a bite-size nugget that clients can chew in about one minute.
https://www.happening.photos/blog/2015/9/copyright-and-usage-rights---a-...
Best video on the topic I've seen! This is the one to share with clients when they don't understand licensing. Really putting your images in terms of your 'product' and comparing it to how they would protect their 'product' is a simple analogy that most would understand.