A photo licensing agreement is a legal contract where the owner of a photo licenses the use of the image to a person or company. The original owner retains the copyright of the image.
The contract stipulates the terms on how, when, and where the licensee can use that photograph. In the photo licensing agreement, the licensor is the person who owns the copyrights or is licensing rights to use the image. The licensee is the person who is gaining the rights to use the image. A licensee may also be granted the rights to sub-license the image – in that case, the licensee in one contract may be a licensor in a sub-license agreement.
In a photo license agreement, the copyright is not being sold — the licensee is essentially licensing the right to use it, not own it. If you’re an independent photographer, the copyright for an image belongs to you as soon as you take the picture. However, if a photographer is working through a company in a work for hire arrangement, the copyright may belong to the company.
In short, you need to hold the copyright in order to license the work to another party.
When Do You Need a Photo License Agreement?
Holding a copyright to a photograph doesn’t produce any income in itself. A photographer may charge a session fee or other fees associated with a shoot. If a photographer takes photos where they retain the copyright, developing a photo licensing agreement to sell usage to clients becomes an excellent way to earn revenue from the work.
A photo license agreement protects both the copyright holder and the person who wishes to publish or use the image. This contract stipulates what the image is, how it can be used, and whether the licensee can manipulate the image.
An agreement is generally discussed prior to the sale of the licensing rights. There are different terms and conditions which may be applicable. Both the licensor and licensee should be in agreement on the scope of the agreement.
The copyright owner will often set the price for the licensing based on the parameters of the agreement. For instance, for an exclusive license where the licensee is the only person allowed to use that work, the price may be set far higher. In comparison, a non-exclusive license where the copyright holder might license the same work to multiple parties can produce more sales and be priced more moderately.
The Consequences of Not Having a Photo License
A photo usage license agreement protects both the copyright holder and the person licensing the work.
Here are a few consequences that can arise for the copyright holder without a photo licensing agreement:
- Lack of revenue: A photo license agreement allows you to set a price on rights to work. Holding the copyright doesn’t garner any income. The ability to sell licensing to commercial and private clients offers another income stream for a photographer. Photographers can offer non-exclusive rights to several clients, increasing their revenue for a single piece because they can license it to more than one person. When offering exclusive rights, the photographer can charge a higher fee because that original work will not be available to monetize in other ways.
- Lack of control: A licensing agreement allows you to agree on the different ways an image can be used. For instance, you might offer only one type of licensure so that the client can only publish the image through one venue. They would be able to use the image on their website but they can’t print tee shirts with the same image. Using a licensing agreement means that you’ll be able to set terms and conditions to protect your interests in the work.
Possible consequences for the licensee include the following:
- Inability to use the image: If you don’t hold the copyright, a licensing agreement is the only legal way to use the image without breaching copyright. If you want to use an image for marketing purposes, or even to publish on your personal blog, there needs to be a licensing agreement or purchase.
- Inability to keep others from using the image: If you don’t want to use a stock photo that’s been used by a million different people, you need to either hold the copyright or purchase licensing rights through an agreement that stipulates whether or not you hold exclusive rights to the image.
The Most Common Uses
A photo licensing agreement is generally used when a photographer wants to license his or her work for use without selling the copyright to the image. In this way, the photographer still gets credit for the image and they will get paid for its use.
There are different types of licensing agreements. Here are a few common terms:
- Retail: A photo license agreement that states that an image can be used for retail might be used if the image was printed and framed for commercial sale or if the image was used on coffee mugs and other products.
- Commercial: Book publishers purchase commercial photo licensing so that they can include the image on the cover of a book or within the pages of a book for sale.
- Editorial: A magazine or online venue purchases editorial licensing in order to use the image with an article or post.
The license can be broad or specific, depending on the scenario. For instance, your licensing agreement may include a time frame. Once the time frame is over, the licensee can not use the image going forward without renewing the license.
What Should Be Included in a Photo Licensing Agreement?
Depending on the scenario, a photo usage licensing agreement might be very simple or it can contain elaborate terms and restrictions.
Here are some of the specific terms and descriptions that should be included in the agreement:
- The parties: In any legal contract, the parties involved should be clearly stated. Legal names or the legal name of the company should be used. The licensee (the person purchasing the rights) and the licensor (the person selling the rights) should be defined.
- Exclusive or non-exclusive: The photo usage license agreement should clearly state whether the agreement is exclusive or non-exclusive. Non-exclusive is the most common.
- The fee or payment: The contract needs to include the total price of the photo usage license.
- Permissions: This section tells you where and when the licensee is allowed to use the image. It explains whether they can use this image on their web properties, in print, etc.
- Time frame: If you’re including a license period on the license, it needs to be included in the contract. This makes it clear that the licensee only has rights to the image for a set length of time unless the license is renewed.
- Limitations: In some scenarios, you could set limitations so that the image can only be used for certain things or in specific ways. For instance, you might license the image for use in one edition of a book or one magazine article. You can also offer unlimited use, which means that the licensee can use the image across all media.
A photo licensing agreement allows the copyright holder and licensee to clearly define the ways in which an image can be used. This protects both parties and allows for a mutually beneficial professional relationship.
Photo Licensing Agreement Sample
Here’s what a typical photo licensing agreement looks like:
Photo Licensing Agreement
|State of ______________|
|PHOTO LICENSING (LICENSE) AGREEMENT|
This Photo License Agreement (this “Agreement”) is made as of this ______ day of _______________, 20______ (the “Effective Date”) by and among/between ________________________ (“Photographer”) and ______________________________________________________________, (collectively “Client”). The parties agree as follows:
- License. Photographer hereby grants to Client (Check one) ☐ an exclusive ☐ a non-exclusive, (Check one) ☐ perpetual license ☐ limited license to use the following work (the “Photos”):
(A). Name/Title: __________________________________
(B). Name/Title: __________________________________
(C). Name/Title: __________________________________
(D). Name/Title: __________________________________
(E). Name/Title: __________________________________
Client is authorized to use the Photos solely for the limited purposes of ___________________________ ___________________________________________________________________________ [Purpose].
Client is authorized to use the Photos: (Check one)
☐ Worldwide (the “Territory”).
☐ In the following regions (the “Territory”): _______________________________________________
☐ Do not specify.
- Ownership of Photos. Client agrees that, subject to the rights and licenses granted herein, Photographer is, and will remain, the sole and exclusive owner of all right, title, and interest, throughout the world, to all Photos and any copies of the Photos. Except as expressly provided in this Agreement, Photographer reserves all rights and licenses not expressly granted in this Agreement.
- Fee. (Check one)
☐ Client shall pay a fee in the amount of $______________ in consideration for the rights and licenses granted herein.
☐ Not applicable.
Late Fees (Check one)
☐ Payment shall be made within __________ days of the due date. If any payment is not made within __________ days after the due date, Photographer may charge (Check one) ☐ a late fee of $______________ for each month past due ☐ an interest of __________% per month. In the event any payment is collected at law or through an attorney-at-law, or under advice therefrom, or through a collection agency, Client agrees to pay all costs of collection, including, without limitation, all court costs and reasonable attorney’s fees.
☐ Not applicable.
- Restrictions on Use. Client will not use the Photos for any of the following purposes: (Check all that apply)
☐ No Unlawful Use. Client will not use the Photos in any unlawful manner, such as pornography or defamation.
☐ No Standalone File Use. Client will not use the Photos in any way that allows a standalone file or content file to be downloaded, extracted, or redistributed by others.
☐ No Use in Trademark or Logo. Client will not use the Photos in any trademark, design, logo or other mark.
☐ No Alterations. Client will not alter the Photos without the prior written permission of Photographer.
☐ No Products for Resale. Client will not use the Photos in any goods or products where the Photos are the primary value.
☐ No Sublicenses. Client will not sublicense the Photos without the prior written permission of Photographer.
☐ Other: _________________________________________________________________________ _________________________________________________________________________________
- Photo Notice and Markings. (Check one)
☐ Client must include a photo credit or copyright notice in the name of the Photographer on all Photos.
☐ Client does NOT need to include a photo credit or copyright notice on the Photos unless specifically requested by the Photographer.
- Indemnification. Client will indemnify, defend, and hold harmless Photographer from all liability, claims, demands, causes of action, judgments, damages, and expenses (including reasonable attorneys’ and experts’ fee and costs) arising out of or as a result from use of the Photos by Client, except in the event that any claims, demands, causes of action, judgments, or expenses arose out of willful misconduct, gross negligence, or bad faith by Photographer.
- Limitations of Liability. EXCEPT FOR ANY REMEDIES THAT CANNOT BE EXCLUDED OR LIMITED BY LAW, NEITHER PARTY, NOR ANY AFFILIATE, WILL BE LIABLE UNDER THIS AGREEMENT TO THE OTHER PARTY, ANY AFFILIATE OR OTHER THIRD PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, RELIANCE, OR PUNITIVE DAMAGES OR LOST OR IMPUTED PROFITS, LOST DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.THIS LIMITATION OF LIABILITY MAY NOT BE VALID IN SOME STATES. CLIENT MAY HAVE RIGHTS THAT CANNOT BE WAIVED UNDER CONSUMER PROTECTION AND OTHER LAWS. PHOTOGRAPHER DOES NOT SEEK TO LIMIT CLIENT’S WARRANTY OR REMEDIES TO ANY EXTENT NOT PERMITTED BY LAW.
- Term. (Check one)
☐ Not appliable. This a perpetual license.
☐ This Agreement will commence on the Effective Date and will continue in full force and effect for an initial period of __________ (Check one) ☐ days ☐ months ☐ years.
Renewal (Check one)
☐ This Agreement will automatically be renewed for periods of __________ year(s) each, unless either party gives notice of non-renewal to the other party at least __________ day(s) prior to the end of any __________ year term. The notice will terminate this Agreement upon expiration of the then current term.
☐ This Agreement will NOT automatically renew.
- Termination. Either party may terminate this Agreement immediately upon delivery of written notice to the other party specifying clearly the grounds for termination if the other party commits a material breach of its obligations under this Agreement and fails to cure the breach within __________ days after written notice of the breach is received by the breaching party. For the avoidance of doubt, termination will be without prejudice to any liability incurred prior to the effective date of termination.
- Assignment. This Agreement may not be assigned by Client without Photographer’s prior written consent. Photographer may assign this Agreement, in whole or in part, to any affiliate or successor.
- Severability. If any provision of this Agreement is held invalid, illegal or unenforceable by a court of competent jurisdiction, the remainder of the Agreement will be valid and enforceable and the parties will negotiate in good faith a substitute, valid and enforceable provision which most nearly puts into effect the intent of the parties.
- No Waiver. This Agreement may not be altered, modified, or amended in any way except in writing signed by both parties. The failure of a party to enforce any provision of the Agreement will not be construed to be a waiver of the right of such party to thereafter enforce that provision or any other provision or right.
- Entire Agreement. This Agreement represents and constitutes the entire agreement between the parties, and supersede and merge all prior negotiations, agreements, and understandings, oral or written, with respect to any and all matters between the parties.
- Governing Law. The parties hereby agree that this Agreement will be governed by, and constructed and enforced in accordance with the laws of the State of _________________, without reference to rules governing choice of laws.
- Disputes. Any dispute arising from this Agreement shall be resolved through: (Check one)
☐ Court litigation. Disputes shall be resolved in the courts of the State of ______________.
(Check if applicable)
☐ If either party brings legal action to enforce its rights under this Agreement, the prevailing party will be entitled to recover from the other party its expenses (including reasonable attorneys’ fees and costs) incurred in connection with the action an any appeal.
☐ Binding arbitration. Binding arbitration shall be conducted in accordance with the rules of the American Arbitration Association.
☐ Mediation, then binding arbitration. If the dispute cannot be resolved through mediation, then the dispute will be resolved through binding arbitration conducted in accordance with the rules of the American Arbitration Association.
- Notices. All notices, demands or other communications to be given under this Agreement by either Party to the other may be effected either by personal delivery in writing or by U.S. mail, registered or certified, postage prepaid with return receipt requested. Notices delivered personally will be deemed communicated as of actual receipt. Mailed notices will be deemed communicated as of two (2) days after mailing.
IN WITNESS WHEREOF, the Parties have entered into this Agreement as of the Effective Date.
|Photographer Signature||Photographer Full Name|
|Client Signature||Client Full Name|
|Client Signature||Client Full Name|
|Client Signature||Client Full Name|