What you need to know about using third party photos

copyrightToday’s business models for licensing third party photography are sufficiently complex that it’s worth taking a few minutes to review the basics and get familiar with the terminology.

Categories of Use: Editorial vs. Commercial

Professional photographers and stock agencies group their work into three broad categories based not on the nature of the photos but instead on the use to which they will be put: editorial, commercial, and retail. Retail use concerns photography commissioned for personal use, and thus is of little consequence to book publishers . . . except, perhaps, for that studio portrait you supplied for the back cover or “about the author” page of your book, a use for which you may have neglected to get the necessary license. Editorial use concerns photography which will be used in a book, e-book, magazine, online, or in a presentation or video that is journalistic, educational, or expository in nature. Commercial use, conversely, concerns photography that will be used in advertising and promotion to sell or market a product (including a book), person (including an author), company (including a publisher), or service.

The distinction between editorial and commercial is particularly important because commercial uses typically carry a significantly higher price tag than editorial uses. And it is not always easy to draw the line between the two. While the use of a photo in the interior pages of a textbook is almost certainly editorial, the use of a photo on your web page may be editorial if it is associated with content being presented there; or it may be commercial if it is associated with a sales message. And if there is both editorial and promotional content on the same web page, it may not be easy to tell which predominates. Likewise, the photo used on the cover of your book is editorial, but a shot of the cover of your book (with the photo incorporated) appearing on an amazon web page offering your book for sale maybe be defined in your license as an un-included, secondary use that is commercial.

Categories of Assets: Royalty Free vs. Rights Managed vs. Commissioned Work

“Royalty Free” and “Rights Managed” are terms that refer to the general scope of the license granted. First understand that Royalty Free doesn’t mean free. Instead it is a term used to describe a license that provides for an up front, one-time payment in return for which you get relatively broad, non-exclusive usage rights. The obvious advantage to a Royalty Free image is that you pay a relatively small fee one time in return for the right to make multiple uses of the image. Be aware, however, that license terms vary from vendor to vendor and so even with a “Royalty Free” license there may sometimes be some sort of limit on the use that you can make of that image, either in terms of number of copies or in terms of length of time, or in terms of medium or purpose. The disadvantage to Royalty Free images is that the rights you get are non-exclusive and so the same image you select is also simultaneously available to others. Indeed, the others who also find it may have used some of the same search terms you used and so the odds that the same image will show up on the cover of a competing book or in an ad for a related product or service are better than you might think.

Commissioned work is the most expensive, because it is work staged or shot just for you and so the photographer’s price to you will have to cover 100% of the value/cost of producing that work. You can pay this entire price up front in return for an assignment of the copyrights to the work. Or you can pay it one use at a time, for a series of exclusive licenses as your needs arise.

Rights Managed photos represent a compromise between Royalty Free images and commissioned work. Rights Managed images are selectively licensed for a limited exclusive use, by market, by length of time, by geographic territory, by medium, and so on. The photographer or agency expects to spread the cost over several separate licenses over the life of the image and so the price is substantially less than comparable commissioned work at the same time that the likelihood of encountering a competing use of the same image is all but non-existent.

Limitations on Use

So we have a spectrum of expense and associated rights from commissioned commercial work to Royalty Free work for editorial uses, but between the two ends of this spectrum the devil is in the details. The limitations on use can take a variety of forms from one vendor to the next. Here, then is a non-exhaustive list of the possible restrictions you may encounter.

Location/Placement – like in real estate, location is important. Whether an image will be used on a book cover, on a chapter opener, in an internal illustration, or on a web page will have an impact on price you are charged.

Size – the size in which an image will be reproduced also often affects price. Size can be measured in terms of portion of a page (e.g., quarter page), or in inches (e.g., 5 x 4 inches), or in pixels (e.g., 2,000 x 3,500 pixels). Be sure that any size limitation encompasses the maximum size your use might require.

Medium – the medium in which you will distribute your work makes a difference. Digital is more susceptible to unauthorized harvest and use than is print and photographers understand this and charge accordingly.

Quantity – be sure that any quantity specified comfortably covers at least your first print run (plus any allowable overage) and be equally sure to go back for license extensions before going to a second or subsequent printing.

Territory – specifying world rights will certainly cover you, but you may end up paying for rights you don’t exploit. Price the difference and make your decision accordingly (taking into account the requirements of your contract with your publisher). But don’t forget to go back for an extension if an export opportunity becomes available.

Duration – many licenses will be described as perpetual or unlimited in time, but Rights Managed licenses will have finite durations and even some Royalty Free licenses will have long but finite terms (e.g., seven or ten years or more) just to avoid open ended commitments. Watch for these and be sure to calendar them in a way that reminders are certain to pop up in sufficient time to get an extension or replace the image.

Versions – if the license contains a limitation on versions, be sure that the limit encompasses the maximum number of design versions, editions, and any ancillary works in which the image will be used.

Language – a photograph may be worth a thousand, language-neutral words, but look for limitations on language of the text used in the work in which the image will be incorporated and think not just about the book but also about the websites on which it may be featured.

Exclusivity – there is rarely any confusion about the meaning of “non-exclusive,” but “exclusive” can be defined by any number of metrics. Be sure to confirm that any exclusivity is clearly and unambiguously described.

The language used to express these limitations is critical. If you see a term that is unfamiliar to you, consult the Picture Licensing Universal System (PLUS) terminology glossary, developed by a coalition of associations representing photographers and other affected constituencies: http://www.useplus.com/useplus/glossary.asp. And when in doubt, add your own definition somewhere in the purchase documents.

Where to Find these Limitations

So now that you know to carefully examine any limitations on your license rights, where must you look to find these limitations? It would be terrific if there were one, universal place to go, but more often than not efficiencies of business communication have resulted in dispersion of the terms of the deal. They may appear in a pre-transaction document (in print or on-line form) that might be called a bid, a quote, an estimate, an assignment confirmation or the like. Although such a document, in and of itself, is merely an invitation to negotiate and not a binding contract, your acceptance of the offer, either by issuing a purchase order or simply making payment will have the affect of incorporating the proposed terms, as well as any terms that might have been contained in any set of “Standard Terms” or “Terms and Conditions” attached to the offer document.

Sometimes there is a formal license document. This is especially likely if your transaction is effected on-line. In this event, in all likelihood you will be asked to click your assent as a part of completing your online purchase. Don’t do this without closely examining the terms of that license that just flashed by.

Sometimes the terms appear in a post-transaction document, like a delivery memo, change order, or invoice. Although you can’t be forced to accept these terms if they were not disclosed prior to your commitment, if you pay the invoice without examining it you will likely have assented to those after-the-fact restrictions.

Steve Gillen, lawyer and partner in the intellectual property firm of Wood Herron & Evans, has focused his practice on publishing and media matters for 30 years. sgillen@whe-law.com