Prior to 1976 a commissioning client owned the copyright to images created by photographers. At that time there were stock images licensed based on use, but the vast majority of images that appeared in publications and advertising were created on assignment. The general rule preached by photography organizations at that time was “Never Shoot On Speculation.”
The 1976 copyright law changed all that and gave photographers ownership of the images they created and the right to control how those images were used. The significance of this shift in ownership cannot be overstated. With the change in the law image makers could license narrow and specific uses of their work. Often the same image could be licensed multiple times for different non-competitive uses.
At the ASMP Strictly Business conferences in Los Angeles, Philadelphia and Chicago Susan Carr discussed how the licensing business has changed and what photographers need to do to adapt.
“Many photographers do not practice proper licensing relying on assumptions, handshakes and verbal OKs,” she said. “And, unfortunately, others use copyright as a weapon, charging exorbitant re-licensing fees or suing commissioning clients whenever possible. The result, some 33 years after the copyright law was changed, are more and more predatory contracts and Work Made For Hire demands coming at us from our commissioning clients. The business world is fast forcing photographers back into a model that looks very much like pre-1976. The promise of a continual income stream from our creations often seems distant and unobtainable.
“So, why bother?
“Licensing in the digital age has evolved. It is rare these days to license photographs, particularly images created through commissioned assignments, for a single use. The new norm is to bundle rights allowing the licensee to use the images over a broad spectrum of platforms. A bundled license, even an unlimited use license with no time limit, is still a license. That license grants to that one person or business the right to use the images for their own purposes. It does not extend to them the right to share or license the photographs to anyone else. As the creator and owner of the photographs, you control any further use or distribution of the images.
“We must still price by taking into account the extent of the usage even if we no longer know the ‘exact’ parameters of that use. A mom and pop diner advertising on their web site and in the local paper should pay far less than a global corporation with multiple online and print outlets. Both distribute the work on the Internet making the use technically ‘worldwide’, but common sense should prevail. The goal should be fair compensation for the rights granted.
“This shift to bundled licensing is critical for photographers offering us a way to preserve the copyrights to our work while simultaneously meeting the needs of our clients. We must, as producers of creative content, make the licensing process efficient and understandable. If we do not do this, the proliferation of Work Made For Hire agreements and rights grabbing contracts from our clients and publishers will dominate, if not take over, the creative market.”