Photo licensing can be confusing.
So let's dive into this. Everyone asks, or rather tells us, the same thing:
I bought the photos so I own them.
You did pay for them, but it's not that simple. Federal copyright law governs the use of creative content like photos, videos, and music. Which states that the creator of the photo owns and controls the use of that photo.
Ok, so what did I just pay for?
You paid for a use license. This is an agreement (yes it's a legal agreement that you consented to when downloading your images) that give you limited (albeit, rather broad) use of the photos we've taken. We still retain ownership of the image, but you are able to do with the image as you please as long as it's within the terms of your license.
So I have a use license. What can I do with my photos?
Great question. It ultimately depends on the specific terms of your agreement, because those terms are negotiable. The more you want to do with the images, the more it costs. The average license we give to real estate brokers allows you to market a property for sale and market yourself as a realtor. That's pretty broad.
Is there anything I can't do?
Yes! Because we own the photos and make our living from selling usage to those photos, you cannot give or sell that photo to anyone else. There are a few more details in the fine print, but that's the main thing.
What if I want to own my photos?
It sounds nice to "own your photos" I get that. But do you really? What do you want to do with the photo that you can't do with a use license? You wan't exclusivity? We can arrange for that. You want distribution rights? We can do that too! We do that for most of our clients that operate on network TV.
We charge roughly 5-10x as much to transfer copyright ownership, and we usually only do that when we're working with companies that make us sign NDA's and pay with briefcases of cash...just kidding... sort of.
I still don't really understand all this.
The easiest way to explain it, is like this. We all listen to music, so I'll use that as an example. Do you remember the whole Napster CD/DVD pirating saga of the early 2000's? Same thing.
You love a song from our friend T Swift, who doesn't? So you pay $1.99 to download it from whichever platform you choose. You now own a license to play that song as many times (and as loud) as you want. You can listen to it on your headphones, on your in home Sonos system, in your car, whatever your heart desires. Let's say your friend hears your out of tune rendition of Blank Space (even though you still don't know all the lyrics) and they want a copy. Can you airdrop it to them? Nope. Why? Because you don't own distribution rights. Let's say you decide to run for President, and want it to be your anthem as you walk on stage. Can you do that? Nope... But why? Because it's a commercial usage and not private, it falls outside of the usage license they gave to you when you downloaded it.
Photos, are treated the same way. And while I'm not nearly as cool or talented as T Swift, we still take our licensing very seriously.
I still have some questions.
I'd be surprised if you didn't. Shoot me a message at Cory@thehomeaesthetic.com and I'll be happy to answer them.
So what exactly do I agree to when I hire you?
I've included our terms below for you to read and review. Let me know if you have any questions.
The boring, but necessary, nitty gritty of it all
What is licensing?
THIS PHOTOGRAPHY SERVICES AGREEMENT AND GRANT OF LIMITED IMAGE USE LICENSE (the “Agreement”) is entered into between Cory & Jackie, LLC d/b/a The Home Aesthetic (“Photographer”) and You (hereinafter “Client”).
WHEREAS, Photographer is an entity providing professional photography services;
WHEREAS, Client desires (1) Photographer to provide certain real estate photography services on its behalf and (2) that Client be granted a limited license to use the images captured to aid in the marketing and potential sale or lease of the real property being photographed;
WHEREAS, Photographer agrees to provide such services and grant such limited license subject to the terms of described more fully herein.
NOW, THEREFORE, in consideration of the foregoing promises and mutual covenants hereinafter set forth and other valuable consideration, the receipt and sufficiency of which is acknowledged, the parties hereto agree as follows:
Scope of Photography Services. Client hereby engages Photographer to render real estate photography services as such times and locations as the parties may agree (hereafter, the “Services”) for value paid by Client to Photographer at such a rate as the parties mutually deem agreeable (the “Rate”). The specific details related to the Services and the Rate may be agreed to either in writing or orally. However, in the event such details are agreed to orally, the parties expressly agree that any performance contemplated under this agreement (which is not committed to writing) shall (and can) be performed within one year and, therefore, shall not be invalid or unenforceable by reason of the Statute of Frauds.
Permissions: Client has obtained all permissions necessary for Photographer to be on, and to photograph the real property. This includes permissions from home owners, business owners, and any intellectual property owners which may have a claim on the property.
Grant of Limited Image Use License. Photographer hereby grants to Client a revocable limited license to use the photographs created as a result of the Services (the “Limited License”). Photographer grants this Limited License subject to the following:
Each photograph produced as a result of the Services (collectively, the “Photographs”) shall be used by Client only for (i) the marketing, selling and/or leasing of the real property actually reflected in the Photographs (the “Property”) and (ii) the marketing of the Client as a real estate broker.
Neither this Limited License nor any of the Photographs produced hereunder may be sold, exchanged or otherwise transferred to any third party without the written consent of Photographer. The parties hereto agree that any sale, exchange or other transfer in violation of this section shall be null and void and that such act shall be a material breach of this Agreement and the Limited License. Notwithstanding the foregoing, the parties acknowledge and agree that Client may be required to distribute the Photographs to certain third parties to facilitate Client’s marketing, sale and/or lease of the real property on behalf of third parties. That being the case, while Client is under contract to sell, lease or market the sale or lease of the Property, Client is hereby authorized under this Limited License to distribute the Photographs as necessary to facilitate marketing, sale and/or lease of real property so long as Client provides written notification to any such third party(ies) that photo credit is required. It is understood that Client’s compliance with this Section shall release Client of any and all liability for any third party’s(ies’) failure to properly provide photo credit/attribution to Photographer. However, Client’s violation of this Section shall be grounds for immediate termination of the Limited License granted under this Agreement.
This Limited License shall be revocable only upon Client’s breach of the terms and provisions of this Agreement. In the event the term of this Agreement, inclusive of any renewals thereof, shall expire, the Limited License granted related to the Photographs produced to that point by Photographer shall remain in full force and effect until and unless Client breaches any of the terms and provisions of this Agreement (which shall survive any termination thereof).
All copyrights and other intellectual property interests in the Photographs, as well as the original Images, whether negative or digital, remain the sole property of Photographer. In the event that an original digital image or negative is provided to Client, Photographer shall retain ownership of the copyright. Nothing within this agreement shall be construed as a waiver of Photographer’s copyright interest in the Photographs. To the extent the Photographs contain any subject matter which is subject to the copyright interests of a third party, Client hereby assumes all liability for any form of copyright infringement which may stem from or be related to Client’s impermissible use of the Images.
Liability. The parties agree that neither Photographer nor any of Photographer’s agents or third party associates shall be liable in the unlikely event that an act of God, equipment failure or other unforeseen circumstance interferes with the Services set forth in this agreement. Further, the parties agree that Photographer shall not be liable for any damage to or on any real property whereupon the Services are provided. In the event Photographer is found liable for any damage to personal or real property as a result of Photographer’s performance of the services contemplated by this Agreement, Client hereby expressly agrees to indemnify and hold Photographer (and any of its agents or associates) harmless from any and all such liability. Further, Client expressly acknowledges and understands the artistic nature of the Services performed by Photographer and, therefore, waives any right to any civil action against Photographer based upon Photographers performance of those Services. In the event that Photographer fails to perform under this agreement for any reason, the parties agree that Client’s damages would be difficult, if not impossible, to ascertain. That being the case, Client hereby agrees that Photographer’s liability under this Agreement is limited solely to the refund of any payment advanced by Client to Photographer for which no Services were rendered.
Social Media. Client may post photos on social media. photo credit is not required unless Client tags additional businesses or accounts in the social media post. In instances where additional accounts are tagged or referenced photo credit must be supplied as follows: Photo by @thehomeaesthetic. The Home Aesthetic's social media account must also be tagged in the post. If Client does not fulfill this requirement
Client is liable for any copyright violations that occur as a result of the post.
Cancelations. Client is responsible for ensuring the property is ready for photography services. Client may cancel the services up to 12 hours before the service's start time with no penalty. In the event photographer arrives and is unable to complete the photography services due to a lack of preparation, or inability to access the property, Client will pay a fee of 30% of the total services amount. If the appointment is canceled or rescheduled more than 3 times within 24 hours of the appointment, a 30% fee will be added to the order.
Payment. Payment will be due at delivery of the gallery. Any invoice not paid within thirty (30) days of billing is subject to a 3% monthly interest charge. We reserve the right to use any and all means of collection available under applicable law to collect any amount past due.
Term. The term of this Agreement shall remain in perpetuity as long as the client does not violate the use terms set forth in this agreement.
Amendment. This Agreement may be modified or amended if the amendment is made in writing and is signed by both parties.
Severability. If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written and enforced as so limited.
Construction and Attorney’s Fees. This Agreement shall be construed under the laws of the state of Indiana. The parties agree that each has had the opportunity to consult an attorney and that each party fully understands the terms and provisions contained herein. Further, the parties have had an opportunity to negotiate and prepare this Agreement together and, therefore, waive any legal argument or defense premised upon who the drafting party is or was. In the event any party hereto brings suit to enforce any provision of this Agreement, the prevailing party shall be entitled to its reasonable attorney fees costs.
