header image by Ailbhe Flynn
If you’re a professional photographer, chances are, your goal is to earn a living by selling your work. This can either be as a print, a download, or as an image license that enables the buyer to use your image for a particular purpose.
However, before selling image licenses, it’s important to understand the complex world of photo usage rights and image licensing to ensure you license your images properly and avoid common mistakes. The variety of photo licensing agreements available to photographers is almost as diverse as photography. A licensing agreement can cover all types of usage, from editorial to commercial and from strictly limited rights to exclusive rights.
Everything you need to know about image licensing and photo usage rights
To help you get started, we’ve put together this extensive guide, an information resource that’s packed with essential information and insider tips that will make image licensing and licensing your photos as easy as pressing the shutter button. Importantly, this guide is written by a photographer with years of experience working in the industry and across image rights and copyright infringement cases. This trusted insider view will provide you with invaluable advice to help steer you in the right direction when it comes to licensing images.
Are you ready to learn the process of how to license images the right way? We’ll show every part you need to know, so you don’t get confused.
First, let’s start with the basics.
Who is legally allowed to offer an image license?
Photo usage rights and copyright law for licensing images
To offer an image license, you have to be either the original author of the photo or be authorized by the original creator to license their images and grant photo usage rights on their behalf. It is also possible for photographic and licensing agencies such as Pixsy to grant photo usage rights on behalf of the original author if they have contractually agreed to do so.
Copyright law defines the author of an image as someone who has created the work and is protected by copyright law. Therefore, the author’s sole right is to determine when and how their work can be used for commercial purposes.
Who owns the actual image rights when it comes to image licensing?
According to copyright law, under the Berne Convention, you are the work’s author as the original creator of the image. Therefore, copyright is automatically instilled in your work when you press the shutter button on your camera.
Plus, copyright protection under the Berne Convention is automatic and does not require the display of a copyright symbol. The Berne Convention of 1886 was the first international agreement on the global management of copyright. Today, the basic concept remains internationally recognized, though the degree of enforcement might differ between jurisdictions. Over 170 countries worldwide are signatories to the Berne Convention, including the US, Canada, the UK, and Australia.
Don’t forget that when someone is granted a license to use an image, this does not mean they will automatically become the new copyright holders. The owner of the copyright is still the creator of the photograph unless they decide to transfer their copyright under the conditions they choose.
What can an image license regulate?
Photo by JESHOOTS.COM
The individual or person granting photo usage rights is referred to as the licensor, and the person or organization receiving the photo usage rights is called the licensee. The agreement used to grant photo usage rights legally is called a license. In general, there are some restrictions on the scope, type, and limitations covered by image licenses.
Licensors grant licensees photo usage rights for an image in exchange for a fee, also known as the licensing fee. By giving licensees these usage rights, the licensor can market their work or that of the rights holder. Some image licensing agreements do exist that are not granted in exchange for a fee, the most popular is the Creative Commons license which is referred to as a gratuitous image licensing agreement.
When an image licensing agreement refers to a ‘type of use,’ it simply refers to the circumstances, context, and content in which the image can appear. For instance, in a newspaper article, an advertising billboard, or a marketing campaign. Image licensing agreements typically cover the following types of use:
- Editorial use (an image used for descriptive purposes in a newspaper, magazine article, editorial feature, or a blog or website.)
- Commercial use (commercial photography is used to sell and/or promote products, services, business websites, and ideas, such as using the image in an advertising campaign.) Our beginners guide to using copyright images is a great place to learn more information about this topic.
- Promotional use.
As an example, if you want to use an image in an editorial article, you will need an image license agreement that covers the editorial use, and you’ll also need to consider where, when, and in which edition of the magazine the image will appear.
What should photographers include in their image licensing agreements?
Photo by the author, Robin Gillham
In terms of image licenses, licensing agreements, and photo usage rights, photographers and their licensees have freedom of contract. This means that there are no specific government regulations that dictate what should go into the agreement.
Moreover, an image licensing agreement does not require a particular format which means that it is possible to reach an agreement verbally between the licensor and licensee, excluding specific exceptions.
However, most experts recommend that a photo licensing agreement be in writing because, without a written license, it is possible for an unreliable licensee to contradict the terms of the agreement. Ultimately, this will result in a hearsay dispute, and if there is a dispute over the details of the photo license, a written agreement can provide clarity.
Readymade image licensing provisions: Creative Commons licenses
Photo by Umberto
When it comes to licensing images, authors who are primarily interested in distributing their work instead of financial remuneration have a number of options. Creative Commons offers free licensing for these kinds of photographers. The image licenses offered by Creative Commons range from CC0 (Creative Commons Zero), which releases the given work into the public domain, all the way to commercial image licenses that allow licensees to build upon the creator’s work for commercial purposes. The different CC licenses come with different attribution specifications as well to which every image user should pay attention.
How do image licenses typically work?
Photo by Romain Dancre
As a result of the freedom of contract mentioned above, there are no binding requirements as to the content of your licensing agreement. However, most licensing agreements cover some important points, such as:
- Usage rights
It is critical to decide what type of usage rights you would like to grant when licensing images. There are two types of rights of use: non-exclusive and exclusive.
- Non-exclusive rights of use
This give the image licensee the right to use the work only in the manner allowed by the license. It is imperative to note that photo usage rights are not exclusively allocated. A non-exclusive usage right can be allocated to multiple people at the same time by the author or rights owner
- Exclusive rights
A licensee who owns exclusive rights to images has the exclusive right to license those images to third parties. It is then illegal even for the author to use his or her own work unless another agreement has been reached. In addition, in your licensing agreement, you can ensure that the user stays with the original author and does not extend to third parties.
- Royalty-free license usage rights
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 more affordable for the audience but mean less revenue for photographers.
- Rights-managed license usage rights
A rights-managed image 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 for the client gains exclusive rights for the usage during the license period.
- Unlimited use
This 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 when licensing images.
Image licensing durations, content, and spatial dimensions
As a licensor, you can set restrictions regarding when, where, and for how long the licensee is allowed to use your photograph. Today, the geographical constraints are less common due to our highly digital environment but can easily make sense for print editorial photography use.
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 or renewed license.
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.
Using an image license to limit the ways your work can be used
Photo by Andre Furtado
In the image licensing agreement, it is also important to spell out how your image can be used, as well as whether the licensee has been granted exclusive or non-exclusive rights. The license can clearly define the type of use- either technically (such as scanning, copying, printing, CD burning) or commercially (such as distribution or further exploitation).
It can apply to the regulation of online or offline use, print media use, editorial or commercial use, or promotional use. The image rights holder can transfer the right to use their work for single, multiple, or even all types of uses.
Author designation in licensing images
Photo by Annie Spratt
A big part of licensing images that is sometimes overlooked in an image licensing agreement, is that the author should also be identified. Authors can decide whether they need to be named and can stipulate it contractually.
When there is no agreement regarding the designation of the author, the author is usually immediately named on the work. A provision explicitly stating the author’s designation is recommended since many licensees are unaware of this.
Additionally, it is possible to agree upon the way in which your name should appear. What should the licensee indicate? Can they decide the author’s designation entirely? Licensing agreements can be drafted to cover all of these options.
The right to edit in image licensing
Photo by Glenn Carstens-Peters
It is also up to the licensor to decide whether their image can be edited by the licensee and to what extent. As far as the right to edit is concerned, there are no limits to what can be stipulated in the agreement.
The licensee can, for example, decide whether they can fully redesign the image or only make minor changes, such as changing the size and color.
When licensing images, what else should photographers consider?
An image license agreement should also permit the granting of sublicenses (a license granted by a licensee to a third party) and the transfer of usage rights. Consequently, it is determined if the licensee may grant his or her own sublicenses or whether the licensee may transfer all or part of the usage rights for an image to a third party.
Remember: It is only possible to transfer usage rights that you own yourself. Third parties cannot be granted rights of use without the consent of the author or the rights holder.
Plus, a rights guarantee can be useful in a photo licensing agreement. By transferring the rights, the licensor confirms that he or she really owns the usage rights. The licensee must agree to a liability exemption in order to be exempt from third-party claims.
If a third party asserts claims against the licensee the licensee may assert claims against the licensor.
From image sub-licenses to rights guarantees in commissioned works
It is recommended to adhere to the purpose of the commission if the image licensing agreement involves granting rights for a commissioned work. When something has not been agreed upon, or something has not been agreed upon clearly enough, this helps interpret the extent of the license later on.
An agreement can be terminated in accordance with the common rules for continuing contracts. After the specified duration of the agreement has expired, the agreement automatically ends. Terminating a license agreement with an unspecified duration requires a declaration of intention from either party (unilateral termination) or both parties (mutual termination).
Getting paid: how to determine image license fees
Freedom of contract also applies to how you determine your remuneration in the licensing agreement. As a result, it will be possible to determine if remuneration should be provided at all and, if so, how and when.
There are several factors that determine the amount of the licensing fee, but the most important one is the scope of the license.
A number of important factors play a role in determining the license fee, from the type of rights offered to the type of usage granted. You can get a general idea of pricing for comparable image licenses on the market by referencing the price list of others in your industry.
A lot of stock agencies also offer calculation tools that show what amount is typical for what types of uses. Our stock agency guide that can help you understand this topic better.
Additionally, there are various remuneration models to choose from. Percentage compensation is a common type of remuneration. This fee is based on the licensee’s net sales revenue and ranges between 3.5% and 12%. Obviously, this amount also depends on the specific negotiations between the contracting parties.
Additionally, unit license fees and minimum license fees are used to calculate flat-rate license fees.
It’s also possible to combine compensation methods; for instance, you can agree on a percentage compensation and set a minimum license fee, which must be paid if no revenue is generated.
Image licensing and stock photography
Stock photos are images available on stock photography websites like Fotolia, Shutterstock, and Getty Images. In spite of their mass appeal, they are only available for a limited number of uses.
Depending on the provider, stock photos can only be used in certain ways, such as:
- RF / RF images / Royalty-Free licensing
There is a problem with the term “royalty-free” because “royalty-free” images are still subject to licensing requirements. “Royalty-Free” licenses (RF licenses) came about in the 90s. Basically, it means images can be licensed at flat-rate fees, temporarily, medially, and independent of usage parameters, according to photo usage rights. Non-exclusive rights of use apply to all RF images.
- RM / Rights-Managed Licenses
Right-managed (RM) is a traditional term for image licenses granted to image agencies for historical photos or well-known, iconic photos. This type of license restricts how you use images. Especially high-value images are often granted exclusive usage rights, and, in many cases, the photographer transfers all rights.
What type of image licensing agreement should you choose?
Photo by the author, Robin Gillham
Licensing images often depends on the intended purpose of the image
In general, there is no right or wrong way to license images, and license requirements depend on the images and their purpose. You can, however, choose your licensing agreement based on the type of photographer you are.
Creative commons and stock licenses, for example, are better suited to hobby photographers. Instead, professional photographers and those who make their living from license fees choose agreements with clear terms.
With royalty-free licenses, you can make money relatively easily, but there’s also the possibility of low revenue. You can reach a wider audience if you share Rights-Managed licensed images with image agencies, but not every image will sell. Fees vary depending on the agency and image material.
There are many different areas covered by licensing agreements and they are difficult to standardize based solely on content. You can choose from a variety of licensing agreements depending on the use you want. Getting both parties a clear legal framework that fits their needs is a challenge in practice.
When it comes to selling something to a party exclusively, drafting a licensing agreement, or figuring out licensing fees – part of it comes from experience, gathering more and more knowledge about clients and the market, and part of it comes from legal advice.
Investing time, energy, and money into learning about image licensing and getting professional help is always a good idea. This will give you peace of mind that your work is as safe as it can get online – and if you still encounter unauthorized use, you’ll know how to deal with it — and if you’d still encounter unauthorized use of your images, try Pixsy for a test run today.
This one is by: Robin Gillham