Photo licencing and the law

November 05 , 2006 by: Haje Jan Kamps Uncategorized

Quite frequently, when you enter your photos into various photo competitions, you are giving away the rights to your photo, due to the small print in the terms and conditions. What most people don’t realise, is that you also give away these rights if you don’t win the competition. This lets organisations, newspapers and other unscrupulous, money-grabbing twits get away with building up massive photo libraries they can use for free, against the relatively cheap cost of a couple of crummy competition prizes…

In the UK, at least, this is completely illegal. Here’s what you need to know about licencing photos, and this also kicks off our series about setting up a photography business – All the blog entries will be tagged with Business, so you can easily go back through the archives and read all the articles!  

 

When you are asked to sign away the rights to your photo, you are doing something quite drastic: This isn’t a licencing deal or a ‘right to use’ the photos, you are actually giving your photos away completely. This means that you can’t use them in a portfolio, you can’t use them on your website, and you can’t sell them.

Of course, when you enter a photography competition, you’ll want to win, and as such, you enter the best photos you have. Can you spot the problem yet? Giving away the rights to your best photos is the photographic equivalent of shooting yourself in both your feet just before running the London marathon.

I’m not big on international law, but in the UK, this practice is unlawful: From a publisher’s point of view, there are quite a few ways to legally use a photograph (and even more ways to do so illegally, but let’s not go into that). These ways include Licencing, Exclusive licencing, Commissioning, and Rights transfer.

Commissioning means that a publisher pays a photographer to take photos specifically for them, which means that they essentially set up a temporary employment contract. The photos taken while under employment of the publishing house belong to the publishing house, who can use, re-use, or sell the rights to the photos as they see fit. In the UK, moral rights (the right to be identified as the creator of a photo, also known as a byline) would have to be negociated separately. If moral rights aren’t mentioned, they are forfeited. A commission is usually based on a pre-signed contract that is renewed for the dates required. The photographer will usually be allowed to use the photos for portfolio use, but this depends on the contract.

Licencing involves a company obtaining a licence for the use of a photo. The price will depend on what the photo will be used for, including factors such as print runs, where a publication is published, and the prominence of a photograph. A licencing deal can be done without signing anything – the photographer gets a purchase order form, sends in an invoice with the details of use of the photo, and then everything’s fine.

If a licence is breached – such as if a publisher uses the image outside of the licenced space or time – the licence becomes null and void. If this happens, the photo that was originally licenced is suddenly a breach of copyright, and the photographer can rightfully sue the publication. Example: A magazine buys the rights to using a photo for a print run of 10K, on the inside of the magazine, and pays £100 for the licence. The web-editor is a numpty and uses this photo on-line as well, which falls outside of the licence. The photographer can now argue that the licence has been breached, which annuls it, and can sue the publication for the use on the web, and the use in the magazine (which now is illegal, because the contract is breached). Think twice about pissing of a big client like this, however (it might be a genuine mistake, and they’ll probably be happy to pull the web story or pay you a little extra for online use) because if you get a reputation of doing this, you’re unlikely to do an awful lot of work in the future.

For the sake of this write-up, Royalty free photos are licenced, but they are typically all-use, all-area licences that are valid forever. A photographer can generally command more money for a RF image, but in the longer term, royalty free imaging is a bad financial investment, as you don’t get any money for re-use of a photo.

Exclusive Licencing is the same as licencing, above, but has an exclusivity clause, meaning that the buyer of the photo has the right to use the photo exclusively in a certain area for a certain amount of time. To avoid misunderstandings, exclusive licences are usually contracted separately.

Transferring ownership is a different kettle of fish altogether: Instead of licencing the photo but keeping your copyright on it, you are giving it, and all the rights, away to the buyer. Generally, this is a bad idea, unless the photos are worthless to anyone else – including yourself – or if the buyer pays such a sum of money that it becomes worth it. Transfer of ownership can only happen if a contract is drawn up and signed by both parties. The only way this can be reversed is by signing another contract, or by getting a court order re-appointing the photographer as the lawful copyright holder.

So, where do the competitions come in?

Well, a lot of publications have realised that paying for photos costs a lot of money. A photo-heavy supplement can easily cost a couple of thousand pounds in photo licences alone. Someone clever came up with an idea: “Hey, we often use landscape photos, and they are expensive. Why don’t we buy a couple of £400 digital cameras, and set up a competition? We get a load of photos we can use for free, and we’re actually better off, because the cameras are cheaper than the rights to use good photos!”.

So, the contract was drawn up, stating something along the lines of “By submitting your photo to XYZ, you forfeit all rights to the use of this photograph for ever”.

The scary bit is that you don’t just give them the photo if you win – especially if you walk away empty-handed, you are in danger of getting exploited by the publication.

As a general rule, the least you can do is to read the terms and conditions. It’s only fair that a publication should be allowed to use the winning competition entries in connection with the competition itself, or to promote future competitions, but if they think the entries that didn’t win are good enough to use, why shouldnt’ they get compensation?

In other words: Read the T&Cs very closely. If they seem unreasonable, don’t participate in the competition. And never, ever, let them grab the rights of your photos.

Finally, remember that transferring of ownership only ever happens if a contract is signed: If you don’t sign anything (and you normally don’t, when you send in your submission. A check-box on a website doesn’t count, this has to be a proper paper contract), they can’t steal the rights to your photos.


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© Kamps Consulting Ltd. This article is licenced for use on Pixiq only. Please do not reproduce wholly or in part without a license. More info.

About Haje Jan

This post was written by Haje Jan Kamps, who has written 565 articles for Photocritic

Haje has written half a dozen books about photography. He spends most of his time running Triggertrap, a company that creates creative tools for triggering your camera.

His most recent books are:

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