Have You Granted Your Client An Implied License?

Many photographers, after they are asked to take photos for a client, deliver the images and wait to get paid.  When the check doesn’t arrive, does the photographer have a copyright infringement or a breach or contract claim against the client?  It depends.

A license is a defense to a claim of copyright infringement.  An exclusive license to use your photos may be granted only in writing.  A nonexclusive license may be granted orally, but it’s always best to make a written record of it, including by email.

But the grant of a nonexclusive license also can be implied from your conduct. By granting an implied license, the copyright owner permits the use of a copyrighted work in a particular manner.

While each case is different, courts have found that photographers may grant an implied license when: (1) a person (the client/licensee) requests the creation of a work; (2) the photographer (the licensor) makes that particular work (takes the photos) and delivers the photos to the client who requested it; and (3) the photographer intends that the client use the photos as initially planned.

Even if you have granted an implied license to your client, you may terminate it when the client fails to pay you.  One way is to send a cease and desist letter to the client stating that the photos are protected by copyright and request that client cease using the photos.

You also need to register the images as soon as possible. It’s also always best to provide a written invoice before or with the delivery of your images that includes the condition that your license for the client’s use of your photos is not granted until the invoice is paid in full.

These are a few more important ways to protect your work!

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