Photo by Kelly Sikkema
Photographers license their work instead of selling it because it allows them to keep copyright ownership while earning long-term revenue for their photos. This is essential if you would like to make money and achieve success in the photography business — and the backbone of all that is your photo licensing agreement.
If you’re looking only for exposure as a photographer, you’ll probably be fine with Creative Commons licensing but if you want to protect your rights and get paid for your work in any form, you must get familiar with photo licensing agreements.
What is photo licensing?
Photo licensing is when the copyright owner of the photograph, or agent or rights holder, grants specific rights to someone to use the image. Choosing the right license is crucial as it will determine how your copyrighted work can be distributed. As you will see, there’s a lot to think about in this area, from usage rights to timeframes to geographic locations.
What is a photo licensing agreement?
A photo licensing agreement is a contract between two parties, the licensor (the photographer who owns the copyright and is licensing the rights to use the image) and the licensee (the person or company wanting to and gaining the right to use the image).
The agreement describes the scope, conditions and limitations under which the licensee can use the photograph and if they are granted rights to even sub-license it. By agreeing to the photo licensing agreement, the licensee is also required to pay a licensing fee to the licensor (if the terms stipulate this).
The key of a photo licensing agreement is that the photographer, by only licensing the image, will still hold copyright ownership of the visual work — with a few possible exceptions, such as working for hire where the copyright might automatically be transferred to the hiring person or company.
Photo by Scott Graham
Why do you need a photo licensing agreement?
Photo licensing agreements grant protection for both parties, set out the specific terms on how the image can be used, and help to avoid any misunderstanding that may arise regarding the use of the photographer’s work. Some clients may not be familiar with licensing images in the first place, therefore a discussion on the subject can be useful education for them and the whole of the industry in the long term.
Photo licensing agreements only have benefits for photographers/rights holder, including:
- The ability to control how, where and when your work appears in any platform and format
- A good source of revenue
- Copyright protection of your work
For licensees, photo licensing agreements are also a good choice as they can:
- Legally use images without breaching copyright (or committing copyright infringement)
- Protect their interests through the agreement, just like the licensor photographer
- Use images that won’t appear in competitors’ materials (if the agreement includes exclusive rights)
To meet the needs and demands of both parties, it’s important to put everything in writing. This will ensure a protective basis for the agreement in case of any disputes later on.
Common image uses in photo licensing agreements
Photo licensing agreements usually regulate the following types of images use:
- Retail use: retail photography is used for the client’s personal use which can range from portraits to fine art.
- Commercial use: commercial photography is used to sell and/or promote products, services, business websites, ideas, such as using the image in an advertising campaign.
- Editorial use: editorial photography is used for editorial purposes, such as including images in a magazine or news (but not for commercial purposes).
Sub-categories of image use include (often restricted to one or more):
- Print, online, advertising, and/or television/film
- Local, national, worldwide (or limited to certain geographic regions
These are the main categories of image use but each licensing case might depend on the exact scenario.
For instance, if you are hired by a magazine to shoot photos for their own advertising campaign promoting the publication, that is not an editorial but commercial use you have to take into account in your licensing agreement.
What is the difference between retail and commercial photography?
Deciding if your client’s photography request falls under retail or commercial use is a common problem in practice. Looking at who is paying and what the subject of the photography is might help.
If your work is paid by the individual directly or indirectly who is the subject of the photograph, it is very likely a retail use. If it’s not paid by the subject of the photo, it’s commercial.
With that said, photographers must analyze the client’s proposal carefully as there are certainly grey areas between retail and commercial photography. You must use your best judgment to make sure that you get paid a fair amount for the scope of use the client demands.
Types of licenses in photo licensing agreements
The first layer where photo licenses differ from each other is the scope of use for the image in question that the photographer grants to the client or licensee. Let’s see the basic license categories that will likely appear in a photo licensing agreement.
Exclusive & non-exclusive license
When the licensee has an exclusive license, they are the only ones allowed to use the given photograph. This naturally comes with paying a much higher price or premium as the photographer loses other sources of income for the same image which must be compensated.
If the license is non-exclusive, the photographer can grant usage of the same work to several parties.
Images under a royalty-free license are sold at a flat rate, temporarily, disregarding usage specifications, and based on non-exclusive rights. Royalty-free images are therefore much affordable for the audience but mean less revenue for photographers.
In a broader sense, a rights-managed license is when the use of an image is limited in one or more ways, for instance, geographically or regarding the time period.
A rights-managed license also typically means that the licensee purchases the license for one-time use and another round of agreement and paying licensing fees will be required if they want to continue using the given image. On the other hand, it’s also common that the client gains exclusive rights for the usage during the license period.
Unlimited use allows the licensee to use the photograph without restrictions regarding parameters such as the geographic or platform scope but only for the license period. This is very important: unlimited use does not mean that the duration of use is unlimited.
Photo by Paul Skorupskas
How to determine photo licensing fees?
Setting a fair price for licensing your photos can be a complex task. Here are a couple of points to think through to help you navigate this:
- Remember all your fees: your creative fee is your day rate and your licensing fee should be a separate amount. Make sure to incorporate both, and possibly all of your expenses included in the job.
- Think about who is your client: is it an individual or a company, and what type? The size and economic power of your potential licensee should influence your rate.
- Determine (knowing the client) the reach of media where your image will be used: an individual’s small Instagram account will have a significantly lower reach than a paid advertising campaign of a big corporation.
- Consider the types of use and licenses granted for the licensee: exclusivity always costs more, so do commercial use versus retail.
- Don’t forget about the range of limitations: one-time or a geographically restricted use will have to cost lower amounts than a longer timeframe or no spatial restrictions.
- Know your market: this includes estimating how the market would pay for licensing your image in general and you can also consider how much the type of client you have would pay for an image and its license like yours. If you can, you may even consider how much income the license would generate for your client.
There are also image licensing fee calculators you can use to help with your estimations or as a starting point:
- Getty Images Rights-Managed Licensing Price Calculator (global)
- The Base Usage Calculator of The Association of Photographers (UK)
Checklist for photo licensing agreements
The following are key elements to include and decide about in a photo licensing agreement:
✓ The type of image use
Start with putting down the nature of image use, based on your client’s needs, ranging between editorial and commercial or retail use. Including the type of permitted use (print, online, film/tv, advertising, etc.), and geographic regions.
✓ The type of image license
Decide on exclusivity first but discuss with the client what type of license would fit their goals the best (and yours).
✓ The time frame
Time frames shouldn’t be too long, almost never ranging for 10+ years for instance, as you may not know where your client may end up (2-5 years being industry standard) — a small business today can become a huge brand in a year and your image might worth a lot more than what you asked for its use in the beginning.
Plan for the period you potentially see ahead and the client can renew its license any time in the future if you agree with it, too. Be clear that image use past the time frame of the license is not permitted and requires a new/renewed license.
✓ The temporal, spatial and platform limitations
As a licensor, you have to set restrictions regarding the time period in which the licensee is allowed to use your photograph and any geographical constraints as well. Today, the latter is less common due to our highly digital environment but can easily make sense for print editorial photography use.
Make sure to cover the subject of the platform as well: digital use is very broad for instance, and should usually be restricted in the agreement per platform unless your client is prepared to pay a higher licensing fee.
✓ The attribution of the photographer
The photographer can decide if they want their names to be indicated when and where the licensee uses their work. It’s common practice to place the photographer’s name next to the image but a photo licensing agreement is also the best place to make sure it happens. As a photographer, exposure is probably as important to you as being paid, so don’t forget to put down your related wishes in writing.
✓ The right to edit
You must agree on the scope of image editing you permit to the client using your image. In some cases, this issue wouldn’t even arise, but the licensee might want modification for a couple of uses. For instance, a print magazine may want to crop your image and do subtle color editing on your image to fit the publication’s visual vibe. Be prepared to discuss all these possibilities with your client and to include them as clearly as possible in the photo licensing agreement.
✓ The right to sublicense
Always cover the subject of sublicensing in your agreement: is your client authorized to sublicense your photograph and if so, within what scope? If you forbid that, make it clear as well. If you wish to approve any sublicense, ensure that is included in the terms.
✓ The amount of licensing fee
Include the fee your client has to pay for using the image based on the license you agreed upon. Make sure this aligns with the scope of image use and the profile of the client (which influences the potential reach your work will be exposed to).
Photo by Mari Helin
Legal image protection with Pixsy
You don’t necessarily need a lawyer to write your photo licensing agreements however we advise you to at least have your version checked by someone with legal expertise.
Pixsy, as an award-winning image protection platform, is set out to help photographers safeguard their work and get fairly paid for it under all circumstances. If you’d like to know more about your rights as a visual property owner, make a visit to our Pixsy Academy.