Written by Ray Detwiler
The distinction between owning a creative work and having license for it can be somewhat confusing. There are situations where one or the other can apply. In this blog, we will go over both the ownership of an image and licensing.
(Disclaimer: I am not an attorney, and these are general guidelines. Always research your particular situation to find out what laws apply).
It’s safe to say that everyone understands what it means to “own” something. It is the property of the person who owns it and they are free to do with it what they want for as long as they want. In the business world, although there are exceptions, it is generally assumed that the owner of any company owns anything that is produced by its employees. Typically, an employee will sign something when they are hired stating their new employer owns and has rights to anything they create while ‘on the clock’ for said company. Upon signing this, if a programmer creates a piece of software for Company A, the programmer does not have any rights to said program. The same applies for anything designed, produced, recorded, or photographed by any employee of Company A.
In the case of a freelancer, since they are working for themselves, they own the work they produce. They own the equipment or tools that aided in producing the work; they create the work on their own time, and therefore are the sole owner.
Licensing, on the other hand, is a bit of a confusing concept. So, just what IS licensing regarding creative works? There are several ways to define licensing, but an applicable definition for this scenario would be something similar to this one found on Google: “…to permit the use of something or to allow an activity to take place.” In other words, the person owning the work has given authorization to another party to do certain things with their property.
In the creative industry, licensing is typically associated with usage or reproduction of something made/produced by someone. In the case of photography, the license would be for the use and reproduction of the photos taken by a photographer. Licensing terms generally regulate things like the period of time the photos can be used, the ways in which a photograph can be displayed, how many copies of a photograph can be made, where the photograph can be distributed, etc.
A common question clients ask photographers is whether or not they will own the images once a project is completed. From this client’s perspective, they are paying for the images, just like they are paying for their office supplies, computers, and office furniture, so they should own them when the shoot is completed.
When I was a freelance photographer, I got asked this question on a routine basis. The answer was always ‘no,’ and this was typically met with a variety of reactions from curiosity and confusion to mild hostility. I would answer by explaining that since I was the creator of the work, I would remain the sole owner, but that I would happily license the images to them.
When a client hires a photographer to do a set of photographs for their company, the photographer will typically charge for a license to those photos. What this license includes can vary depending on the photographer, and the cost can depend on what the client needs the images for, so this should be negotiated up front. The license can range from single usage (i.e. for use in a conference presentation and then never used again without paying a royalty to the photographer) to an unlimited license (allowing the client to use the images for as long as they want, anywhere they want, and on as many things as they want).
The cost of licensing usually has a direct correlation with the exposure and amount of use the images will receive. It also might be impacted by the ability of the images to generate revenue for the client. For example, if an image is going to be used in an advertisement in a popular magazine, that image will be seen by thousands of people and will contribute to increased revenue for the advertiser. Therefore, a photographer might charge more for that license than if the photograph is merely going to be a thumbnail on a specific page of the company’s website.
Photographers are usually willing to grant unlimited licenses if they feel they are being properly compensated and are confident the company using the images will not do so in a way that might tarnish their reputation. This, again, is up to negotiations between the photographer and the client.
Be sure that you communicate for how long and what the images will be used for when hiring a photographer, and have a good understanding of the license that will be provided with the images. You likely will not be able to own the images, but, for a price, you can have the next best thing in an unlimited license.