Why You Should Use Conditions in Your Licenses

More than thirty years ago, the Lake Tahoe Wildlife Care center started raising, rehabilitating, and releasing orphaned and injured wild birds and animals.  I had the honor to attend the training session for volunteers this past weekend and look forward to helping the center with its mission.  The above photo is of an orphaned, injured baby red-tailed hawk being held by one of the rehabbers at the LTWC center.

While I was in training, Evan Andersen of our “Photo Attorney®” law office prepared the following blog post:

The Licensing Law Blog reported on a recent case where the court held that the language of the contract prevented the copyright owner from recovering damages for the unauthorized use of its copyrighted work (software, in this case).  The court found that because the language in the software owner’s license agreement was in the form of a covenant or promise (the “User agrees that it will . . .”) rather than a condition or a premise upon which the fulfillment of an agreement depends (the “User may use software provided that it . . .”), the court held that the software owner could not recover any copyright infringement damages for the alleged unauthorized use.  Check the August 15, 2008 blog entry for more information about conditions and covenants.

The court explained that the condition of a license agreement must be related to the exclusive rights of the copyright owner found in 17 USC 106 for the copyright owner to recover copyright infringement damages.  Significantly, the court noted that a licensee’s failure to pay the license fee would always meet the test to allow the  a copyright owner to recover copyright infringement damages.

What does this mean for photographers?  The language in your licenses can affect your options for recovery if your photos are used without your permission.  So, when preparing an agreement to license a photograph, include language such as “No rights are granted to Client until Photographer has received payment in full.”  That, and registering your photos with the Copyright Office, are great ways to protect your work.

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