51 Personal or Commercial Use?
November 13, 1996
As more and more stock photographers sign agreements with Corbis I would
suggest that they get a clear understanding of the distinctions Corbis' draws
between "personal use" and "commercial use".
In the past couple years I have received several copies of Corbis' standard
contract, but the term "personal use" is not used, or spelled out in any of
these documents. Nevertheless, it appears that the concept of "personal use" as
opposed to "commercial use" may play a role in how photographers are compensated
in the future.
Photographers will get 45% of the gross sale price for commercial uses but only
3.5% for many personal uses.
Commercial uses are pretty self-explanatory, and for the most part the kind of
situations where photographers have traditionally sold rights to their images.
But, it is possible in the future that the personal use of digital images
through what Corbis calls "Remote Access Technology" could become a much bigger
market. If that happens, photographers may receive very little for the use of
their images -- not just in the low fees charged for these uses, but in the
percentage they receive of the total fee collected.
Keep in mind Bill Gates' vision for the Corbis file as defined in his book "The
Road Ahead," and in speeches over the years. He hopes to give students direct
access to major portions, if not the entire Corbis database. They will be able
to pull images from the file to use in school reports for fees of well under
$1.00 per usage.
He also sees the day when people will be pulling images from the database and
have them appear electronically on their walls as art. It is hoped that
customers will be able to change these images frequently and replace them with
other images found in the database. Thus, the fee to use any particular image
is not likely to be all that high.
Photographers need to insist on some written definition of what Corbis defines
as personal use before they sign their contracts. Is it personal use if:
- a student uses an image in a school report?
- a professor uses an image in materials he distributes to 100 students in his
- someone uses an image on their wall at home?
- someone uses an image on the wall in their private office?
- someone owns a company with 20 employees and uses an image in the lobby of
- someone uses an image in a report that goes to ten of his co-workers?
- someone uses an image in a brochure that is distributed to a few hundred
potential customers to advertise his personal services?
- someone uses an image in a brochure designed to raise funds for a small,
local, non-profit or religious organization?
- someone uses an image on his personal home page on the internet, even though
that home page is used to advertise and promote services the individual
If you think any of the above are not personal uses how will it be possible to
distinguish between a personal and a commercial use? Are you willing to let
Corbis decide, sometime in the future, what is personal and what is commercial?
If one of your images happens to be used in one of the above ways are you
entitled to 45% of the fee collected, or 3.5%? Also keep in mind, that
according to their contract, before your percentage is calculated Corbis
deducts, "any applicable taxes, royalties and any service, maintenance,
hardware, software, server, telecommunications of other fees or charges payable
to third parties that are Corbis' responsibility in connection with the
respective Remote Access Technology."
Thus, most of their costs in making the specific sale are taken off the top of
whatever is charged. What's left is split between Corbis and the photographer
with Corbis getting (96.5%) to cover their costs in building the database, and
the photographer's getting (3.5%) for producing the images.
My Definition of Commercial
My definition of commercial is simple. If anyone in the marketing chain is
receiving any compensation then it is a commercial use. Thus, if Corbis
receives $1.00 from someone for access to their database -- regardless of
whether that person intends to use the image for his or her personal purposes or
some business use -- that's a commercial use.
The contract leaves Corbis tremendous latitude in determining what sales fall
into the 3.5% category. If you expect to see 45% of anything don't leave this
ambiguity in the contract. Make sure it is spelled out to your satisfaction, or
expect it to be interpreted in Corbis' favor.