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02-02-2014, 08:03 AM   #1
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Licensing / Copyright conundrum

I have a non-profit client that wants to hire me to do a series of on-site profiles of farmers and their farms. What the client wants in terms of licensing is something I don't know the right words for, so I am having trouble researching how we might write the agreement. Here are the parameters:
  • The client wants the photos to be freely available to non-commercial entities like schools (CC Non-Commercial, check)
  • The client wants to be able to use the photos in multiple media streams
  • The client wants to be able to sub-license usage to their partners as needed
  • I want to retain copyright and be able to use/resell the photos. The client is fine with that.
  • However, the client also specifically states they don't want their competitors using the photos, which puts me in a potentially difficult position about how *I* reuse the photos
  • While on site and traveling, I suspect I will get photos I can use but they'd never want
The client is a complete novice at this and I am just a step above. We already tentatively agreed on a day rate with me retaining copyright but that was before discussing the licensing limitations they want; I told them I would investigate the best way to handle this.


One way I have considered is that they pay me the day rate, I grant them non-exclusive license and then a clause that says I will not *knowingly* license photos to potential competitors, but am not liable for mistakes. That strikes me as unsatisfactory, since it prevents any agency agreement or stock photo situation.



The second way I am pondering is eliminating the day rate and proposing they purchase a package of exclusive licenses (with sub-licensing rights) for just the photos they want. I suspect they will not go for this, since the rejected photos may still contain content a competitor can use.


The third way I've considered is Work-For-Hire contract where they own copyright but I have a license to use the photos for self-promotion. I don't want to go this way; I want to retain copyright if at all possible.


Thoughts? Is there a better option?

02-02-2014, 08:29 AM - 2 Likes   #2
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Other variables to consider are attaching time and market/geography conditions around some of the usage scenarios you've discussed.

The client, for example, may be granted exclusive usage rights only for one year, then from that period onwards you can re-sell the images without restriction. And/or they may be allowed to retain rights for usage just in your town/region/country, but you can do what you like outside of that area. Or they may retain a one-year license to use the images in their industry only (eg agriculture), but you retain full rights to use the images for areas outside of that industry - eg for fashion.

You might find it useful to skim through some of the following articles from the 'A Photo Editor' blog on the subject of pricing and negotiating for photography. Licensing is always an issue that comes up. Some copies of actual contracts are included:

Pricing & Negotiating | A Photo Editor
02-02-2014, 11:26 AM - 1 Like   #3
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QuoteOriginally posted by rawr Quote
Other variables to consider are attaching time and market/geography conditions around some of the usage scenarios you've discussed.

The client, for example, may be granted exclusive usage rights only for one year, then from that period onwards you can re-sell the images without restriction. And/or they may be allowed to retain rights for usage just in your town/region/country, but you can do what you like outside of that area. Or they may retain a one-year license to use the images in their industry only (eg agriculture), but you retain full rights to use the images for areas outside of that industry - eg for fashion.

You might find it useful to skim through some of the following articles from the 'A Photo Editor' blog on the subject of pricing and negotiating for photography. Licensing is always an issue that comes up. Some copies of actual contracts are included:

Pricing & Negotiating | A Photo Editor
Good Morning - I was reading the thread, and clicked on your link to the Pricing & Negotiating blog - and then stopped. I don't in any way pretend to be a professional photographer, or even a photographer for that matter (maybe a rank hack perhaps). However, the blog link that you posted is excellent. I remember reading the IEEE Spectrum article that was referenced first. For someone with any inclination towards doing something along these lines - even once, this article is a gold mind of information.

You should post the link in a stand alone thread so that it can be found a bit more easily.

02-02-2014, 11:32 AM   #4
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Thanks, rawr, that's a good link. It's a bit outside the scope of dealing with a small, local non-profit but it does give me much to chew on.

02-02-2014, 11:42 AM - 1 Like   #5
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QuoteOriginally posted by NicoleC Quote
I have a non-profit client that wants to hire me to do a series of on-site profiles of farmers and their farms. What the client wants in terms of licensing is something I don't know the right words for, so I am having trouble researching how we might write the agreement. Here are the parameters:
  • The client wants the photos to be freely available to non-commercial entities like schools (CC Non-Commercial, check)
  • The client wants to be able to use the photos in multiple media streams - I believe that this can just be stated in the contract.
  • The client wants to be able to sub-license usage to their partners as needed - This may raise the fee slightly, but you indicate that this has already been settled. You might stipulate that when they do this, they send you an email indicating who, so that if you run across the image, you will not consider it "borrowed" (a nice term for stolen).
  • I want to retain copyright and be able to use/resell the photos. The client is fine with that.
  • However, the client also specifically states they don't want their competitors using the photos, which puts me in a potentially difficult position about how *I* reuse the photos - A list fo "competitors" from them would be in order here. It may be difficult for you to know who they may consider being a competitor.
  • While on site and traveling, I suspect I will get photos I can use but they'd never want
The client is a complete novice at this and I am just a step above. We already tentatively agreed on a day rate with me retaining copyright but that was before discussing the licensing limitations they want; I told them I would investigate the best way to handle this. - you may want to try to find a copyright attorney (perhaps together, but the attorney may resist that), to formalize the agreement, especially since it has some custom conditions.

One way I have considered is that they pay me the day rate, I grant them non-exclusive license and then a clause that says I will not *knowingly* license photos to potential competitors, but am not liable for mistakes. That strikes me as unsatisfactory, since it prevents any agency agreement or stock photo situation. - As suggested above, a list of "competitors" would help.

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