What’s an Image License?

Commercial Photography in Spokane

April 1, 2019 by Alena

Let’s start at the very beginning. (It’s a very good place to start.) Copyright laws allow for two types of photos to be taken by photographers and used by others. Those two types of photos are “work for hire” photos and photographer copyright-protected photos. Work for hire means that a photographer agrees to take photographs and turn over all the images and the rights to all the images to whomever has commissioned the work. The other type of photos, photographer copyright-protected photos, are photos that are copyrighted the second they’re created, with all rights belonging to the photographer, which then can be licensed to the client for various uses.

By federal law, if you do not have a work for hire contract, all photographs are treated as photographer copyright-protected photos by default. So the intern that took your marketing photos, depending on what kind of contract you had with them, by default owns the copyright to your marketing photos. Sometimes, when a small business starts using custom photography (photos taken by students doing free work or amateur photographers or professionals), they open themselves up to liability. Without a contract defining the photo use, photographers own their photos and the copyright. An invoice and a handshake are not a work for hire contract or a licensing agreement, which means that you paid for photos but have no right to use them.

So when you work with a photographer, make sure you have a work for hire contract or an image license.

Work for hire contracts are less popular. Most professional photographers won’t do work for hire, and, if one is willing to do work for hire, it will be expensive. In work for hire, they’re selling you the copyright forever: they don’t get to use it and they don’t get to see any of the benefits to your business when you use the photos (the most popular example of this has to do with the Nike logo – Nike paid $35 for the logo, and, while they compensated its creator when the brand took off, they weren’t legally obligated to pay her any more money). So when you’re shopping for custom photos and you want to do work for hire, you may not be able to find a professional photographer who is willing to do work for hire. At Rogue Heart, we’ve never taken on a contract as work for hire. While we’ve sent out proposals that included both options (work for hire or licensing photos), our clients have always decided to license photos. And there are three reasons for that.

The first reason is that work for hire puts the burden of legal responsibility for photo production on the client. Work for hire means that you have to know all of things that have to happen before, during, and after a photo shoot. We do photo shoots all the time, so we’re ready for what comes our way. Are you ready with photo releases and property releases? How about accidentally capturing a logo? Or capturing someone who absolutely will not allow their likeness to be used? We deal with these and other questions all the time, and we’re ready to deal with them to ensure that everyone, including us (for our internal marketing), can use the photos. If you license your images, we’ll make sure all of that is taken care of.

The second reason to license your images is that photos won’t be relevant forever. If we take a photo of your product and your logo changes three years later, then owning the copyright to the photo is worthless after those three years. You need a new photo of the product anyway! A five-year license means that you paid less than work for hire, so it doesn’t cost as much to take a new photo with the new logo. Another way that your photos won’t be relevant forever is that trends change. Remember in the 90s when every headshot was in black and white? Those photos aren’t professional-looking anymore. The same thing goes for a LinkedIn profile image that is 15 years old. It might be in color, but you probably look different from the photo. If you don’t want to confuse people who know you in real life and online, you’ll need to get it updated. And a five-year license is a great reminder to tell yourself, hey, I need a new headshot.

The third reason to use image licensing over work for hire is because image licensing is not considered a digital good – which means that you won’t have to pay sales tax on it. If you contract with a work for hire photographer you will be (or should be) charged sales tax, but licensing is exempt in the state of Washington.

Now I just want to walk through what that agreement looks like start to finish. The cost of getting new photos is broken down into two parts: production and licensing. For production, you are paying for our photographers’ time: preparing the photo shoot, the actual session, and the post-production (editing) of the photos. Post-production varies from project to project. At one end of the spectrum, some images just need a simple color adjustment. The other end is composite images, where multiple photos are stitched together in Photoshop to create a single unique image. These take a lot of time to create, so they’re more expensive during production. Check out the two examples below!

spokane print ads

The next thing that you pay for is the Image License. We’ll find out what your goals are with your images so that we can create an individualized license for you. We’ll find out how big you want your photos to be, how long you need to use your photos, and how you want to use your photos (and if you want the photos to be exclusively yours). Those choices guide what type of photo license you’ll need for your photos – different options have different costs. A good rule of thumb is that a license is cheaper if you need the photo for fewer things and more expensive if you want more freedom when using the photos. Once you’ve signed the Image License Agreement, you’ll be able to use your photos however it’s stipulated in the agreement (digital or in print, organically or paid ads, etc).

The last thing you should know about Image Licenses is that they’re almost always non-exclusive. An exclusive agreement would be really expensive. However, what you need to know from us is that we don’t license images as stock photos (some photographers will license their photos to the public on stock photo websites, but that’s not how we want our photos to be used). Just because your agreement is non-exclusive doesn’t mean that they’ll be available to everyone else. They won’t be. A non-exclusive agreement simply means that we can use the photos on our blog or social media, too. Occasionally, you may have another strategic partner that wants to license your photos as well (like a supplier or other vendor). We’ll let you know if a situation like that comes up.

It seems like a complicated process, but it doesn’t have to be. We want this process to follow copyright laws, of course, but we also want it to work for you and your business. So all you need to do is tell us what your needs are so we can create the perfect image license for you.

Now say cheese!

Alena Schoonmaker

Written By Alena

Alena is a writer, filmmaker, and office coordinator who brings a love of organization and a hatred of gluten to the Rogue Heart team. She volunteers her time at the Spokane International Film Festival as a film programmer and volunteer coordinator, where she enjoys bringing stories by diverse directors and writers about underserved communities to Spokane. Though a major cinephile, she also volunteers with animals at Pawsitive Outreach Spay/Neuter Advocates in Newport.

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