It may be surprising to receive a free licensing agreement from an attorney but we think it is so important that we had to do it. Let’s start with a hypothetical scenario.
A Story About Latte Art
Janet recently opened a local coffee shop, called “The Grind,”. She then hires you as a photographer to shoot the new store and the unique Latte Art that has been drawing customers throughout the area. The photos will be used strictly for the Grind’s website. You complete the shoot, invoice Janet and are paid for the work. Six months pass. You are reading Wired magazine and see an article on a new coffee machine called “CoffeeArt”, which creates cool foam patterns automatically. On the product packaging, you see your unmistakable photographs from The Grind, with their telltale signature Latte Foam Art. You call Janet immediately.
Janet says, “Yeah, pretty cool right? That company was started by a friend of mine and I gave him those pictures for the product packaging.” You tell her she had no right to do that but she says that she bought the photos so they are hers to do with what she wants. You then contact CoffeeArt and tell them they are using your photos without permission and ask them to pay you for the use of the photos. CoffeeArt asks you to contact their attorney.
Scenarios like this are all too common. Janet and CoffeeArt are not maliciously infringing your work; the misuse purely occurred due to a misunderstanding as to what rights Janet was entitled to when she hired you. To avoid scenarios like this, it is important that you communicate to your client exactly what rights they are receiving. The appropriate vehicle for this is through a licensing agreement.
What exactly is a licensing agreement?
As the copyright holder, you are provided exclusive rights in your work as per the Copyright Act. Those rights include the right to make copies, distribute, publicly display, and make derivatives of your work. Those rights are solely yours and cannot be taken away. However, those rights can be transferred to another entity; whether in total or just a few of the rights, for a limited time or for life. With a license, you are not “selling a work” as such. What you are doing is selling permission to use that work in a certain way for a certain length of time. We have created a sample agreement for your use, which you can download below.
As you can see, the licensing agreement sample is long and full of legalese, all necessary for your protection but not necessarily helpful in ensuring that your Client understands the terms. To make sure that your client understands the terms, we recommend adding a summary to your invoice so you can be sure you are both in agreement as to what is expected. Also, while the agreement may have standard terms like cancellation requirements, other terms may be different for each of your projects. For example, as a photographer, you may want to limit your photographs to web-only or as a musician, you may want your jingle only used for a particular commercial and only for 1 year, at which time, the client must pay a renewal fee if they wish to continue using it. Variable terms are better added to the invoice rather than within the agreement so it can be the same for each client. Also, it will be helpful to review each element the agreement as well as the variable terms with the client. At the very least, should you find yourself in a lawsuit with the client, the agreement will be an important evidentiary item. Some people may think that such extensive legal documents and discussions are overkill or a just a hassle; those people generally recant that thought the day they find themselves in a litigation.
A licensing agreement should be a basic part of your photography or other art-related business. While it may seem like extra work, in the long run, it will save you time and money.