This page is written e in order to help shed insight for those clients who have not yet worked with professional photographers or those that are surprised to know that my job estimate includes a usage clause which limits their use of my photographs.
When hiring a photographer, the client will be paying for two things:
1. the photographer’s ability to create a photograph with a certain style and feel agreed upon by you, the client (known as the Creative Fee, see here for pricing issues)
2. the rights for the client to reproduce that photograph for a very specific usage and time period (known as the Usage Fee)
An industry wide, best standard practice in photography is the licensing of images instead of the selling of images. According to the U.S. Constitution, as soon as someone takes a photo and that image is written to a memory card, the photographer forever retains copyright of the artwork which was created. Unless the photographer is working under a “Work For Hire Contract”, he/she is the sole owner of the photographs. If the client wants to use that photograph within a certain context, then they will need to purchase a license from the photographer, stipulating exactly where, how and for how long the photograph will be used. Operating under a rights-managed business licensing model is crucial to photographers in order to remain in business and to continue offering professional services and products to their clients.
Many other industries operate with the same licensing model; for example the music industry. A music CD is a standalone product that one can purchase and own, but ownership of the CD does not give one ownership (or a license) with respect to the music on that CD, or the sound recording itself. The Copyright Act distinguishes between ownership of a copyright and ownership of a material object. If you purchase a CD or receive one as a gift, you own that material object and may sell it to someone else, or even make a copy of it for yourself, for archival purposes (that’s “fair use”). However, you may not do anything that infringes the copyrights in the music and sound recording that are on the CD. You may not rent it, t broadcast it on the radio (without a license) orshare it on the Internet, etc. In other words, your rights are limited to your ownership of that material object.
Or, take the analogy to a rental car company offered by R2 Photography LLC:
When you rent a car, you sign a contract. On that contract you put yourself down as the driver. The daily rate in which you are charged for that car is based on you as the only driver. If your spouse or business associate also may need to drive the car at some point, you put their name down too. However, that also increases the rate. The contract is also for a specific amount of time. After that, you either have to return the car, or pay an additional fee.
If you have ever read the fine print on a rental agreement, you actually agree to only drive that car certain places. One of the places you agree not to drive typically mentioned is driving on “unmaintained roads.” It also says you agree to abide by posted speed limits. You agree to keep the car in the United States.
Now, you have the car… but, just because you physically have possession of the car, that doesn’t mean you own it. You can’t sell it. You can’t give it to someone else. You can’t lend it to someone else. So, by signing that contract you have agreed that you are the only user of the vehicle, you will only use it certain ways, you will not sell or give it away, and you will use it only for a certain time. Believe it or not, in a general sense, this is a “Usage agreement” nearly identical to Usage on your photographer’s Estimate. By signing the contract you have agreed that you are the only user of the images, you will only use the images in certain ways, you will not sell or give away the images, and you will use the images only for a certain time.
Granted, in some cases, one may want to purchase the car, or retain usage for a never ending period (known as Royalty Free Rights). Like most things, the usage clause is naturally negotiable and this is reflected within the pricing. However, Photo CS, L.L.C. aims to sell the client a license that best fits their needs and budget; after all, why pay an unlimited license fee when the client will only be using the images for 10, 20 or 50 years? By estimating a custom tailored license for the client’s needs, the most competitive price possible is ensured (without any unnecessary spending). Furthermore a healthy photography industry based on fair competition and the possibility for more work with that same client are maintained.
In order to clearly define usage terms the standards defined by the Picture Licensing Universal System (PLUS) will be used:
The PLUS Coalition is an international non-profit initiative on a mission to simplify and facilitate the communication and management of image rights. Organized by respected associations, leading companies, standards bodies, scholars and industry experts, the PLUS Coalition exists for the benefit of all communities involved in creating, distributing, using and preserving images. Spanning more than thirty countries, these diverse stakeholders have collaborated to develop PLUS, a system of standards that makes it easier to communicate, understand and manage image rights in all countries. The PLUS Coalition exists at the crossroads between technology, commerce, the arts, preservation and education.