Photo Attorney

Mar 1, 2007

Licensing Your Copyright

(Excerpts from article posted at Naturescapes.net)

Clients often give photographers a license to sign. While it is best to hire an attorney to review it, some photographers don't want to dispute the terms of the license for fear of losing the clients or are just happy to be published. But to best protect your work, you should know what you are agreeing to.

Following are some common terms and conditions used in licenses along with a brief explanation of what they mean.

All disputes arising under this Agreement shall be submitted to binding arbitration and settled in accordance with the rules of the American Arbitration Association.

Agreeing to binding arbitration means that you are forfeiting your right to file a lawsuit in a state or federal court of law and your claim will not be decided by a jury of your peers. Instead, you present your case to an arbitrator who will decide your case with no right of appeal.

The pros with arbitration are that the overall litigation costs are less and the case is usually resolved more quickly. Often the arbitrator has special knowledge about the subject as compared to a judge or jury who must be educated on the issues. The cons are that it is usually more expensive initially (the filing fee is usually much higher than to file in a state or federal court and you have to pay at least half of the arbitrator's fee rather than getting a judge or jury at no charge). The damages awarded usually are less (there are no high "runaway/windfall" jury awards).

Be sure that you have input into deciding who the arbitrator is (some organizations retain the right to choose an arbitrator who may be biased towards the organization). The American Arbitration Association also tends to be more expensive than other arbitration groups who may conduct arbitrations by AAA rules.

This Agreement constitutes the entire understanding between the parties.

Any discussions, agreements, or promises made by the licensing party are not binding. Instead, only those terms and conditions that are contained specifically in the license/contract are considered to be part of the agreement. For example, you can not later sue the licensee for its promise in an email or stated in person to give you a photo credit if it was not in the contract.

The Agreement's terms can be modified only by an instrument in writing signed by both parties.

After you sign the contract, you may modify it if both of the parties (you and the licensee) agree in writing to change the contract. It is, in effect, a new contract. Both are binding except for the new terms of the second contract that conflict with the first contract.

The laws of [state] govern this Agreement. By signing this Agreement, Photographer consents to personal jurisdiction by and venue in the state and federal courts of the [state].

Here you are agreeing to be subject to a lawsuit in the state listed in the Agreement, which usually is where the licensee is. If, for example, you live in Florida and the licensee, who lives in Oregon, sues you there for breaching the agreement, you will have a long way to travel to defend a suit. You also likely will be unable to sue the licensee in Florida (unless you can show the licensee has a presence in Florida) for breaching the contract.

Photographer and [client] intend this to be a contract for services and each considers the products and results of the services to be rendered by Photographer hereunder (the "Work") to be a work made for hire.

A photographer owns the copyright for images that they create, unless the creation of those images falls into the "work-for-hire" category. A work-for-hire relationship is created in two situations: (1) the photographer is an employee hired to photograph for the employer - an example would be a photojournalist who is an employee of a newspaper; or (2) the photographer is hired to provide photographs for collective works or compilations and signs a written agreement that specifically states that the work is to be considered a work made for hire. Therefore, freelance photographers are subjected to work-for-hire status only when they agree to it contractually. Work-for-hire provisions are usually negotiable and monetary considerations should be included when photographers are asked to give up their copyrights.

Either of the following in similar form:

I hereby sell, assign and transfer in perpetuity to [client] all world-wide rights, title, and interest in all photographs, copyrights (including the right to register the copyright and any renewals or reversions thereof) derivative works, and any other material and/or intellectual property embodied in the material created.

[Client] has exclusive worldwide rights to distribute, sell, and/or license distribution of the Submission, or excerpts of the Submission, or derivatives of the Submission.

In the photography industry, these are known as "rights grabs." Either of these phrases will, in effect, transfer your copyrights to the other party. Be sure that you intend to do so and get paid accordingly.

Ignorance of the law is no excuse. Once you have taken steps to share your work with the world, take those steps necessary to protect it.

Take my advice; get professional help.
PhotoAttorney®

Technorati Tags: ,