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Wednesday, April 20, 2005

Discussing Stock License Agreements

Where on the Internet can I find a typical image licensing contract that a photographer would use, like for stock licensing his stuff? Book?

There are tons of places, but here are some things to think about first:

*) Most of the prototype contracts are for photographers who have much more substantial business arrangements with their licensees. This is either in terms of dollar amount, or the proprietary nature of the subjects/usages (or even both). Most pre-written/boilerplate contracts have a lot of verbiage that won't necessarily apply to most other (less expensive and less legally formal) business relationships. Having crap in a contract that you don't need (or understand) only hurts. More on that soon.

*) People who license pictures from photographers often do not have the authority to engage in the terms and conditions that these prototype contracts stipulate. This may cause the whole thing to be bumped to a higher signing authority, which may not only slow down the whole process, but may kill it if the higher-up just says, "forget it--find another image from another source."

*) Most license arrangements are so straight forward, that there isn't a whole lot to say, other than those I mentioned in my posting, Terms Related to Digital Files. I have never found the need for any other license agreement than the simple four-point terms outlined there (which are also on on my image quotes, and sales receipt--see below).

*) The UNDERDOG in any legal dispute usually fares better when there is ambiguity in an agreement when he has little to lose. Put another way, the bigger player is more exposed when faced with a legal entanglement with a smaller player (such as a single photographer) because bigger parties have too much to lose. The aversion to risk is higher, so it costs even more to go through legal hurdles to avoid that risk. Little guys usually don't go to the cost and expense of such a suit unless they have a strong case, especially when a stronger case has more of a likelihood of upside results. Hence, bigger players prefer to settle before it goes to court anyway (esp. if they are caught doing something wrong, and there's an ambiguous contract to have to argue in front of a judge or mediator). So, bigger players prefer a solid, very verbose contract to bolster their case (or to wiggle around in).

*) Even in the event of a dispute, the contract doesn't matter nearly as much as the ability to enforce/defend it. It costs a LOT of money to go through the legal system, even if you're right. And the amount of money you recover has to be enough to warrant hiring the lawyer to do it (or for a lawyer to agree to take it on contingency). Otherwise, it isn't worthwhile. Which brings us back to the first point above: if the license for the photo is worth a lot of money, or there are sensitive/proprietary subjects or legally formal relationships involved, then yes, you'd need a formal license contract like those you find on various photography interest group websites. My guess is that doesn't apply to most everyday photographers. (Photo agencies, yes... But that's another thing entirely.)

If it turns out that, in your specific situation, you should have a good, formal license agreement with the licensees of your photos, then it will be the case that you know ahead of time WHY you need it, and are absolutely certain that you are seriously exposed legally (or can be screwed royally) without one. If this really is the case, then you already know the lay of the land, and should be able to write it yourself. If you are not sure, but just worried/scared, you don't need one. Using a prototype you find on the net or anywhere else is probably not going to do much more for you than being less formal.

Note!! I'm not saying that people should not have protection. I'm just saying that your terms do not need to be verbose, formal, or even signed by the licensee for them to be legally enforceable. If you have those terms briefly enumerated in your price quote, and then restated in the receipt they receive after having made payment, then the licensee has been duely notified of the terms, implicitly binding them to those terms.


Blogger argv said...

My main objection to QT Luong's license agreement is, as I discuss in the post, it's attempting to be a catch-all agreement for most (or any) type of license you enter into with a client. And this is precisely what should be avoided. You should strip away any and all "terms" that are not part of the business agreement between you and your client.

For example, if the client has no intention of using the image on the web, don't include terms that discuss it. Otherwise, you're implicitly suggesting a form of use that was not intended, thereby opening yourself up to a difficult challenge if you try to argue they violated your license terms because they used the image on the web. It's much harder to convince a judge that that web use was not permitted if the client can point to language in the agreement that specifies terms for its use.

In short, keep it simple! Don't fall under the simplistic assumption that you can use a single license agreement for all your uses.

9:40 PM  
Blogger argv said...

I am so glad you raised this point, because it illustrates a larger misconception about the industry that I've been wanting to write about for a long time. That is, the illusion that what "big companies" do are models for how individuals should behave. This misconception weaves into almost every aspects of the photography business, and accounts for why many individuals struggle.

Rather than address the issue in this thead, I wrote a whole new blog post HERE

11:28 PM  

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