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| Licensing and Usage Overview Licensing Rates are based on the type and length of use. Licensing Fees (sometimes referred to as Usage Fees) reflect the value of the usage for each image in the assignment. This is determined by a number of considerations, including how widely and for how long the images will be viewed, reproduced and distributed. Typically, the more extensive the rights, the higher the fee. It’s just like the ads on television. Ad slots during the Super Bowl are expensive because the game has a huge audience. Ads on a local cable program cost relatively little, but not many people will see them. Another issue is what degree of exclusivity is required. In addition to their immediate value, images can have ongoing value as stock photos, in coffee-table books, for historical research and so on. For many photographers, their library of licensable images creates an ongoing income stream. If the photos from an assignment must be kept off the market for an extended time, the license fee must be higher to offset the lost future earnings. To obtain the best value at the outset, negotiate the rights license based on your currently planned needs, but also secure a price for additional rights that you might want in the future. This approach lets you pay as you go while minimizing budget uncertainty. Licensing & Rights Granted A photograph is considered intellectual property. The photographer owns the copyright to the images he or she creates and has the exclusive right to license their use. Licensing agreements are specific with regard to use and, in general, should answer these three basic questions: Who will use the images? How and where will the images appear? How long will the images be used? This information may be detailed in the Licensing & Rights Granted section of the estimate or in a separate licensing agreement. It’s important that you and your photographer agree on the scope of the license before photography has begun. Should your project plans change, be sure to discuss them with your photographer. Possession vs. Rights The right to use images cannot be transferred by anyone without the written consent of the copyright holder. If you’ve received photographs without written permission for use, it is your responsibility to secure licensing rights before using them. As a rule of thumb, a good way to avoid any misunderstandings is to contact the photographer before passing along photographs. You should also advise the party receiving the images to contact the photographer directly to secure a license granting permission for their use. Any copying, distribution, public display or creation of derivative works of images without specific permission from the photographer is a violation of Federal copyright law. Simply having physical possession of photographs, slides, prints, transparencies or digital files does not grant the right to use them. A license is a legal agreement granting permission to exercise specified rights to a work. A copyright is a collection of exclusive rights initially owned by the creator of an original work (an image, text, song, design, etc.) Buyouts and ‘All Rights’ Agreements There are legitimate, but rare, circumstances in which you need to possess the full array of rights that a copyright includes. Far more often, you actually have no prospect of ever using all those rights. (How often is the right to print on bubble-gum wrappers in Thailand a business necessity?) Rather, you may simply be looking to lock in future flexibility. Ownership is an expensive way to do it, though. Because the photographer can never again use the image in any way, he or she will have to recoup its lost future value in the upfront fee. Nevertheless, photographers occasionally get requests for a “buyout” of the image. This is, at best, a vaguely defined concept, but it usually means that the client wants to make a one-time payment and never have to negotiate for further rights. For legal purposes, there are several ways to approach this. The photographer may sign over the ownership of the copyright via a written document. As with many other transfers of valuable property, such a transfer may be recorded with the government - in this case, with the U.S. Copyright Office in Washington, DC. The photographer and client may execute an exclusive, unlimited-use rights licensing contract. Here, the photographer keeps the tree (so to speak) but the client gets all the fruit. A third approach is to structure the assignment as a “work made for hire.” In this scenario, the client owns the copyright (along with all legal liabilities) right from the start. Note that such an arrangement is valid only if both the client and the photographer have signed a specific, written agreement before the assignment has begun. It is almost always more cost-effective to license just the rights you will actually use. Licenses can be written to provide coverage for any current and future needs without requiring transfer of copyright, exclusive unlimited usage or a work made for hire agreement. By discussing your real needs and concerns with your photographer, you can license any and all appropriate uses without adding unnecessary expense. Digital Capture or Photography Fees (sometimes referred to as Creative Fees) Creative Fees or Digital Capture Fee reflect the experience, creativity and vision that the photographer brings to the assignment, along with the complexity of the project. Issues such as the total number of finished images needed, scheduling, site logistics or the need for specialized skills or equipment can affect the overall Photography Fee. |
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