Best Business Practices for Photographers [216]
In instances where you are granting a single-party license, it may be crucial that you specify whether the license is transferrable or non-transferrable. This could, in one instance, be a factor if a company is sold, and the asset (in the form of the license) may or may not transfer to the new owner. Or, if your client is a public relations firm, it is likely critical that they be able to transfer the right to use the images you produced for them to their client, who wanted you hired in the first place. If, on the other hand, you have an editorial client, you may not want that client to be able to transfer the rights to a third party, because it could allow your client to license reprints of the story (and your images) without compensating you, and this could result in significant losses in revenue. For a broader explanation of reprint rights, see "How to Work through a Contract Negotiation for Editorial Clients" in Chapter 13.
Then there is the concern of selling something you don't own. If I consent to being photographed while at an event or for a portrait for a magazine, the photographer can do certain things with that photo and cannot do other things. What photographers can do is license that image as stock for editorial purposes only, provided that the editorial use is not libelous. What they cannot do is license the image containing my likeness for commercial/corporate uses without my express written consent to do so, usually codified in the form of a model release. Yet, so many photographers I know license something they do not own, and doing so could get them in hot water. For example, just because I have a photograph of the President, that does not mean I can license that image for use on a commercial product or to suggest an endorsement of the product or service by the President. The metadata in the photographs that the White House releases of the President includes the following language:
"This official White House photograph is being made available for publication by news organizations and/or for personal use printing by the subject(s) of the photograph. The photograph may not be used in materials, advertisements, products, or promotions that in any way suggest approval or endorsement of the President, the First Family, or the White House."
It is important to note that this image, while in the public domain, cannot be copyrighted. Under Title 17 of the Copyright laws, "Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise." However, even though it was produced by the Federal government and thus is not eligible for copyright protections, rights of publicity still protect against the use of the photographs in, for example, advertising.
When licensing images from an assignment, be sure to define what exactly the client is licensing. If, for example, you specify "produce images of two or three setups," it may not be clear that the client ultimately is licensing just one image from each of the setups. Specifying "produce images of two or three setups, with the final delivery being a single image from each setup" would be far more clear. Be cautious when you see language in a proposed contract that says you grant a license for a "body of work." In this case, if you shot two or three setups but made dozens of images from a variety of angles with a variety of poses, the client may be entitled to use all of the images from the shoot.
Also, be sure to set forth a specific duration for your license. It may be from the date of the shoot or the date of first use. In the end, making certain that the start date and end date are clearly defined is important. Also, within that timeframe, can the client use it just once or up to a specific number of times or quantity of items (such as posters, brochures, and so on)?
Proceed with Caution: The Retroactive License
When you learn of a copyright infringement of your work,