Best Business Practices for Photographers [173]
After a number of recitations, it would also include:
2 GRANT OF LICENSE
2.1 Licensor grants to Licensee, during the Term, a non-exclusive, non-transferrable, revocable license to use the Licensed Properties solely upon and in connection with (i) the production and creation of Licensed Images, (ii) the right to appoint Authorized Manufacturers to print materials containing a depiction of Licensed Properties, and/or to manufacture Licensed Products on its behalf subject to the terms and conditions set forth in Schedules X and Y, and (iii) the distribution, advertising, promotion, and sale of Licensed Images or Licensed Products in the Territory under terms of this Agreement. Nothing herein shall prohibit the Licensor, or any other licensee of Licensor, to exercise any of the same rights regarding during the term hereof. Licensee agrees to use the Licensed Properties only in a manner that promotes the goodwill of the Licensed Properties, and is not detrimental in any way to that goodwill or the reputation of the Licensor.
2.2 No Sublicenses. Licensee expressly acknowledges that it will not have the right to grant sublicenses to this Agreement. Any attempted sub-license by Licensee will be void, without effect, and may be grounds for immediate termination of this Agreement. Appointments of third party printers or manufacturers by Licensee shall be considered void sublicenses, except as permitted under Section II hereof.
An entire trademark license agreement or a trademark release is most assuredly going to be nonexclusive, unless you are obtaining exclusivity within a product line (say, a poster line or a garment line), and the document will be far more lengthy than a single-page release we use for models.
Herein lies an important point about these releases. Now that you are aware of the existence of—and further, the importance of—a trademark release/license, make certain that your contracts stipulate something to the effect of "…client hereby certifies that they will not exercise the rights under this contract unless and until they have obtained all permissions and releases required to do so, including trademark releases.…" Further, in the event that the client does use the photos without a trademark release, language such as "…client hereby saves and holds harmless Photographer in the event of a claim made by a third party for uses outside the scope or permission of this contract…."
Case Study: The Importance of Releases
Here is one case that should prompt you to secure model releases if you plan to use the photographs for anything other than editorial uses. Quite literally, it is a case—Andrew Marsinko v. John B. Burwell, et al, case # CL07001070-00, filed in the Circuit Court for the County of Roanoke, in Virginia. In this case, the photographer, as suggested in the suit, was allegedly working for the State Fair of Virginia corporation and was commissioned to make a series of images of people at the fair, and it was suggested in the lawsuit that the images were being made for the purposes of promoting the fair. However, this case is one where one of the subjects that was photographed sued the photographer, and the client was not involved.
Reasonably, as many photographers do, as they considered the specifics of this assignment and how to price it, they likely contemplated the value of the work in terms of the time involved, the use of the images by the clients and the value that work brings, and the potential value that that image may have in the future as