Commercial Multimedia Licensing Guide & Media Permissions Form
Let’s chat legal…
If you don’t plan to use any of the multimedia content we capture together for profit a.k.a. “Commercial-Use,” you don’t need to worry about licensing - and you can just go straight to booking your shoot!
If you’re a business or social media influencer and do intend to use the images we capture for commercial or promotional purposes, please read on…
Thank you for choosing to collaborate with me to create your Digital Marketing, eCommerce and Social Media photos. I’m really excited to be such a big part of the images that will build your brand!
Please allow me a moment to explain how we must consider structuring your production budget as well as compliance with U.S. Copyright & Commercial Licensing Laws:
First things first…
Creative Fees & Commercial-Use Licensing
Why don’t you just charge flat rates?
Most folks expect to just pay a couple hundred dollars to get some photos or a video then use that IP (Intellectual Property) however they want in perpetuity. But that’s just not how professionals do business. It’s also violating U.S. Copyright Law!
Only amateurs operate this way. That’s why they are, by definition, amateurs. And it’s also why they literally can’t afford to be content producers full-time. If you’d prefer to work with an amateur, then working with me is not in your best interest. That’s just not how I do business. And chances are, you’ll spend more time looking for a “capable” content producer and then negotiating on pricing than you do actually getting your media project done!
Think of it like hiring the best construction business to build your home: You don’t want to hire the cheapest guy in town because this is your house. Your children will be raised and sleep under this roof! So why compromise on the content that drives business to your business in the same way? I am the “builder” who has a dedicated storage facility for my production equipment because each piece of gear produces a specific result. I also hire specialized crew if necessary rather than trying to do everything myself. The amateur shows up with a Jansport backpack and a $500 camera he bought with a credit card at Best Buy. You wouldn’t hire the builder who drives around town with every tool he owns strapped to the side of his truck, would you?
Here’s another perspective: Let’s say you’re selling your house and you want really high quality photos and aerial videos of it so you can charge, in some cases, several HUNDRED THOUSAND dollars more than “market value.” You figure, “If I make this place look great, I just might get an eager buyer to pay me my asking price.” Now, let’s say it works! Congratulations! You just made a couple hundred thousand dollars more than you might have made using iPhone photos because you invested in professional multimedia content. Now, ask yourself, how much is that worth to the guy who made that content for me? Is that only worth $200-300 - or barely the cost of a monthly car payment? Or does it make sense to actually pay him fairly for the very real value he provided you?
To work with a professional who is as efficient as he is skilled, a Customer should expect to pay a Multimedia Producer (aka “Content Creator”) a one-time fee to produce multimedia content. That's referred to as the "Creative Fee." This covers the actual costs of producing the content (aka “Production Costs”).
Production costs range from production liability insurance, special gear rental, equipment wear-and-tear usage fees, transportation, specialty and/or support crew hiring, location rental, City permitting, crew catering costs and any post production costing ranging from DIT techs, editing and graphics work. It all adds up very quickly - and as a producer, you can find yourself literally working for “free” because it costs you more to make the content than you’re earning on the shoot! That’s why proper budgeting is so important.
Is every production like this? Of course not! But you are starting to see how Multimedia Production works…
Once created, according to U.S. Copyright Law, the Customer must also pay commercial licensing to use that content in commerce because they are essentially “leasing” (licensing) the use of it from the Exclusive Rights Holder. The U.S. Copyright Alliance explains…
But with my introductory licensing-only option,
I just waive the Creative Fee
It's better for you because you're not fully out of pocket up-front; and good for me if I produce content you decide to keep using indefinitely.
Then if it makes sense to continue working together, we establish an ongoing Monthly Retainer Contract that includes commercial-use licensing. And of course, I also work on a One-Time Contract basis.
If you already understand Commercial Licensing…
* Please complete the Media Permissions Discovery Form below. *
But if you’re new to Commercial Licensing usage fees please feel free to reach out directly - I am happy to answer any questions upfront so there is no confusion.
The main thing to note is that we’re both obligated by U.S. Copyright Office Law to practice and adhere to the Intellectual Property regulations that keep our economy and industry thriving.
As you fill out this form, if you don’t know specifics yet, no worries - this is just a starting point. We refine the terms of our agreement according to YOUR budget!
And if you want to know more before proceeding, you can scroll past the form to read about why we need to cover this base prior to creating your awesome content…
Media Permissions Form
Multimedia Content Licensing
Let’s dive right in!
NOTE: I understand if this is your first time trying to navigate Commercial Licensing, it can be intimidating or confusing! But I want to make this process as easy and cost-effective as possible so we can stay on-budget and you can just get back to running your business.
Most importantly, if you plan to use the images we are about to capture or have already shot for any commercial venture, let’s start our dialogue about how you plan to use them.
And don’t just take it from me - please read this primer by the New York Times on How Multimedia Content Licensing Works…
U.S. Copyright Law
Intellectual Property Licensing Explained
When most folks think of photographers or videographers shooting multimedia, they think of paying a flat booking fee that is actually referred to as the “Creative Fee” in the publishing industry.
But, according to the U.S. Copyright Office Law, that is only part of what Customers are required to pay for what’s called “Intellectual Property.”
Therefore, just like big Hollywood movie distribution contracts or New York Times Bestseller book publishing deals, Commercial Content for a huge international national brand like Coca Cola or even local Real Estate media, Commercial Licensing is considered “industry standard” because U.S. Copyright Law mandates that it gets built right into any “Creative Services Contract.”
Big Name Brand vs. Mom-N-Pop…
INTELLECTUAL. PROPERTY. RIGHTS.
You wouldn’t hire a builder, an attorney or a bookkeeping service without a signed Service Contract - so our work together is no different.
It doesn’t matter if you’re a “Big Name” national brand or a local mom-n-pop - if you hire any photographer, videographer, content creator to conceive, produce and deliver branded multimedia for commercial sales or promotion (i.e. to sell products or services) you are responsible by U.S. Copyright Law to pay that individual for “Intellectual Property Rights.”
And that’s exactly what we’re doing - we’re creating really cool branded stuff that will help you sell your products and services! So it’s really important for you, as the Customer, to understand your rights…
Exclusive vs NON-Exclusive IP Rights
Here’s a fact that may be surprising: You DO NOT own the multimedia content you pay me to create. You have what’s called “Non-Exclusive Rights” to use it because you paid me to create it.
Only I, as the original creator, own the “Exclusive Rights” unless we negotiate a deal in which you purchase the exclusive rights from me to use the content in-perpetuity.
Media Buys & Ad Spend
So Commercial-Use of multimedia content is always calculated based on a sliding scale relative to the intended distribution or total “Media Buy”
Typically, the more ad-spend per advertising or promotional campaign, the lower the relative licensing percentage rate.
In other words, if you’re launching a small local campaign, your commercial licensing rates will also be small because they are relative to what you or the brand you represent intends to spend on the whole campaign.
If you’re a major “national or international brand,” your reach is potentially global so your overall campaign budget is much higher. Thus you’ll be spending more to license the content on such a broad scope.
But chances are, you are not Coca-Cola! So my Commercial Licensing Rates are on the lower end of the industry spectrum because I specialize in small to medium-sized businesses and individuals so my primary goal is to save you money.
Before I can provide you with an accurate licensing quote, I need some specific information about how you intend to use the photos or multimedia content we create.
Example: Let’s say you’re a local business and you intend to post what we shoot together on your website and in Facebook / Instagram ads running in the local region where you offer your services.
And let’s say you’ve set aside a $500 budget to pay for those ads to run for a month.
You plan to test the ads out before you either discontinue them and go a different route or renew them because they’re bringing in a ton of new business…
Heard enough? Ready to license?
Or read on…
Media Distribution & Projected Revenue
Media Distribution and Projected Revenue are based on what consumer or audience markets you’re targeting as well as the demographics of those niches. But they both factor in to the price you pay for Commercial Licensing.
Media Buys often get priced based on the “going value” or competition for eyeballs, clicks, keywords or any combination thereof.
Prices fluctuate based on who controls those markets - whether they be local TV channels or larger entities like national movie theater chains. For social media platforms like Facebook and Instagram, for example, ads cost different amount depending on where you place the collateral - in the margins, as pop-ups, animations, videos etc. It all varies.
So when we discuss how you intend to market the multimedia content we create, chances are you have no idea how or where you actually intend to release it into the wild!
And that’s okay because licensing is based on limited terms that provide the opportunity for both parties to come back to the table and discuss what’s coming next…
Let’s use a simple metaphor - a golf swing…
Licensing media is like the perfect golf swing. You’ve practiced for years. You know the fundamentals - foot placement, ball position, grip, tempo and follow-through. Everything is in play all at once - just like all the variables in the marketplace you’re trying to hit. The marketplace, the demographic, the audience - that’s your fairway.
If you swing well, your ball will land in the center of the fairway and you’ll have a clean look at your follow-on shot. Fewer variables will come into play.
If you don’t swing well, you’ll end up in the rough and the next shot will be tougher.
So like a swing at making par, we start with the basics and try to make the best shot possible. But then we adjust as we go along. And we re-negotiate licensing terms at the end of each licensing period.
Licensing Periods
Marketing is like fly fishing. First, you observe the river; the hatch.
You look for leading indicators - riffles and rises.
Then you cast and hope for a strike…
And you cast and cast again, over and over, until you start to see the results you’re looking for - or actually hook up with a sale!
Licensing Periods vary depending on the commercial usage. For a simple campaign, it could be as long as a week or two before it’s time to renegotiate.
If the content performs really well, results in a high conversion rate and returns a favorable ROI, then you may decide to license it for broader use - and longer periods.
So then you have to come back to the table and discuss those terms with the exclusive rights holder.
Once you finally do figure out what’s bringing the fish in, you stick with what works so you can limit out for the day - make as many sales as possible.
Then you consider what’s called a “Media Buy Out.”
Media Buy Outs
Sometimes, because of past experience, brands already know what works and what will sell. When they do, they will often propose a Media Buy Out up front.
So they pay the requisite creative fees to the content creator then pay them for Exclusive Rights to the media before they even release it. Often this is more expensive than licensing the content by term based on performance and ROI - but it also gives brands the autonomy to control every aspect of their spend going forward.
It’s always a good idea to consider a Buy Out for Exclusive Rights as an option if you want to be in control from the get-go…
Licensing Fee Calculation
EXAMPLE: Your promotion is running for the next 30 days and you’re planning to spend $500 on the total “Ad Campaign.”
Based on the sliding scale above, I calculate your Commercial Licensing Fee to be 15% of your $500 Ad Spend / Media Buy: $75
And that’s it! If you decide you only want to license the content we create for the one campaign, all you have to pay to use the content is an additional $75 in addition to the initial Creative Fee.
So when filling out your Media Permissions Form, please be as detailed as possible about your intended use of the multimedia and total ad-spend for your campaign.
Doing so helps me see ways to help save you money. For example, if you intend to just post the media on your website and that only costs $20/month subscription, then technically, you’re only needing to license the content for $3/month!
We could easily set up a simple licensing contract for a year that would only cost you: $36
See how NOT EXPENSIVE that is?!
Rest-assured, our Licensing conversation will be an open exchange about how to stay within your budget rather than a series of hard-lined “deal points.”
Feeling more confident about licensing?
Great, scroll back up to the form and submit away!
Otherwise, keep on reading…
We already covered some of the basics about U.S. Copyright Law, but let’s get into some of the finer points…
Because I am the creator of the images I capture, I am the legal owner of those images.
In order to use those images for any commercial purposes, an individual or business must license the photos from me for a specific period of time.
The specific details of that license are agreed upon in a Commercial Content Licensing Agreement.
Here’s a link to the Services Agreement you’ll sign before we work together:
Commercial Licensing FAQs
What is a Photo Licensing Agreement?
A content license agreement is a legal contract where the owner of a multimedia licenses the use of the image to a person or company.
The original owner (photographer) retains the copyright of the image. Unless the universal exclusive rights are sold to the Client, the contract stipulates the terms on how, when, and where the licensee can use the photo(s). In the photo licensing agreement, the licensor is the person who owns the copyrights or is licensing rights to use the image. This is always the photographer who originally created and captured the photograph. The licensee is the person who is gaining the rights to use the image.
A licensee may also be granted the rights to sub-license the image – in that case, the licensee in one contract may be a licensor in a sub-license agreement.
In a photo license agreement, the copyright is not being sold — the licensee is essentially licensing the right to use it, not own it. If you’re an independent photographer, the copyright for an image belongs to you as soon as you take the picture. However, if a photographer is working through a company in a work for hire arrangement, the copyright may belong to the company.
In short, you need to hold the copyright in order to license the work to another party.
When Do I Need a Photo License Agreement?
Holding a copyright to a photograph doesn’t produce any income in itself. A photographer may charge a session fee or other creative fees associated with a shoot. If a photographer takes photos where they retain the copyright, developing a photo licensing agreement to sell usage to clients becomes an excellent way to earn recurring revenue from the work. This is standard practice in the international photography industry.
A photo license agreement protects both the copyright holder and the person who wishes to publish or use the image. This contract stipulates what the image is, how it can be used, and whether the licensee can manipulate the image.
An agreement is generally discussed prior to the sale of the licensing rights. There are different terms and conditions which may be applicable. Both the licensor and licensee should be in agreement on the scope of the agreement.
The copyright owner will often set the price for the licensing based on the parameters of the agreement. For instance, for an exclusive license where the licensee is the only person allowed to use that work, the price may be set far higher. In comparison, a non-exclusive license where the copyright holder might license the same work to multiple parties can produce more sales and be priced more moderately.
What if I don’t sign a Photo Licensing Agreement?
A photo usage license agreement protects both the copyright holder and the person licensing the work. Here are a few consequences that can arise for the copyright holder without a photo licensing agreement:
Lack of Revenue: A photo license agreement allows you to set a price on rights to work. Holding the copyright doesn’t garner any income. The ability to sell licensing to commercial and private clients offers another income stream for a photographer. Photographers can offer non-exclusive rights to several clients, increasing their revenue for a single piece because they can license it to more than one person. When offering exclusive rights, the photographer can charge a higher fee because that original work will not be available to monetize in other ways.
Lack of Control: A licensing agreement allows you to agree on the different ways an image can be used. For instance, you might offer only one type of licensure so that the client can only publish the image through one venue. They would be able to use the image on their website but they can’t print tee shirts with the same image. Using a licensing agreement means that you’ll be able to set terms and conditions to protect your interests in the work.
Possible consequences for the licensee include the following:
Inability to Use The Image: If you don’t hold the copyright, a licensing agreement is the only legal way to use the image without breaching copyright. If you want to use an image for marketing purposes, or even to publish on your personal blog, there needs to be a licensing agreement or purchase.
Inability to Keep Others From Using The Image: If you don’t want to use a stock photo that’s been used by a million different people, you need to either hold the copyright or purchase licensing rights through an agreement that stipulates whether or not you hold exclusive rights to the image.
Copyright Violation Lawsuit: To illustrate how serious this is, I’m going to throw myself under the bus here and admit to being GUILTY of violating Copyright law myself. Yes. It’s true. Even as a professional photographer, I have fallen victim to - and faced the consequences of - not having the right to use an image.
I was pitching a TV show to a small, independent production company. No sale was made and money was ever exchanged. No promise made. No talent holding deals signed. I simply used an image of a sailboat (yup - just a picture of a boat!) in a digital presentation that was only displayed in a private conference room. And the best part is, I only took ONE meeting to pitch this show before…you guessed it - I got nailed for Copyright infringement.
How did they find me? A tracking-pixel. Yeah. I had no idea there was such a thing. but they tracked the image download to my ISP then my personal IP address and onto my computer. Real digital forensics - based on an computer-vision algorithm specifically designed to track images being used my Copyright offenders.
Caught Red-Handed: I received a certified letter in the mail from an attorney’s office requesting I immediately pay a fine of $10,000 or face further “damages.” I did not mis-type that. They literally demanded I pay $10K for illegally using a single photo. It was so expensive, I thought it was a scam.
So I researched the law firm and sure enough, they were affiliated with the photo agency who retains the license for the image of the sailboat. I decided the truth would “set me free” and called them up in good faith. I admitted to using the image and tried to get off the hook with just a slap on the wrist. But they were very serious. They demanded full payment. Now I was in real trouble.
Long story short, I had a lawyer friend call the firm on my behalf and negotiate the fine down to $1,000. Believe me, I was not a happy camper. So my advice to you? DON’T DO IT!
Federal Copyright Violation & Very Steep Fines: I’m not going to dive too deep into this, but if you think the story I just told you was bad news, imagine what the fine would have been if I’d actually sold the show to Discovery Channel, made a bunch of money and then we got the Cease & Desist? I don’t think Disco would have renewed my contract…
The Most Common Uses
A photo licensing agreement is generally used when a photographer wants to license his or her work for use without selling the copyright to the image. In this way, the photographer still gets credit for the image and they will get paid for its use.
There are different types of licensing agreements. Here are a few common terms:
Retail: A photo license agreement that states that an image can be used for retail might be used if the image was printed and framed for commercial sale or if the image was used on coffee mugs and other products.
Commercial: Book publishers purchases commercial photo licensing so that they can include the image on the cover of a book or within the pages of a book for sale.
Editorial: A magazine or online venue purchases editorial licensing in order to use the image with an article or post.
The license can be broad or specific, depending on the scenario. For instance, your licensing agreement may include a time frame. Once the time frame is over, the licensee can not use the image going forward without renewing the license.
What’s Included in a Photo Usage License Agreement?
Depending on the scenario, a photo usage licensing agreement might be very simple or it can contain elaborate terms and restrictions. Here are some of the specific terms and descriptions that should be included in the agreement:
The Parties: In any legal contract, the parties involved should be clearly stated. Legal names or the legal name of the company should be used. The licensee (person purchasing the rights) and the licensor (person selling the rights) should be defined.
Exclusive or Non-Exclusive: The photo usage license agreement should clearly state whether the agreement is exclusive or non-exclusive. Non-exclusive is the most common.
The Fee or Payment: The contract needs to include the total price of the photo usage license.
Permissions: This section tells you where and when the licensee is allowed to use the image. It explains whether they can use this image on their web properties, in print, etc.
Time Frame: If you’re including a license period on the license, it needs to be included in the contract. This makes it clear that the licensee only has rights to the image for a set length of time unless the license is renewed.
Limitations: In some scenarios, you could set limitations so that the image can only be used for certain things or in specific ways. For instance, you might license the image for use in one edition of a book or one magazine article. You can also offer unlimited use, which means that the licensee can use the image across all media.
A photo licensing agreement allows the copyright holder and licensee to clearly define the ways in which an image can be used. This protects both parties and allows for a mutually beneficial professional relationship.
Commercial vs. Non-Commercial Images
Some images are classified as non-commercial because they are not for-profit. Examples are candid event photos or corporate headshots for website bios. In other words, images that don’t sell a product or service. Since my goal is always to keep your costs to a minimum, I waive licensing for all non-commercial images. Instead, I book these shoots as “works-for-hire” and request only a one-time creative fee.
For images used for commercial or advertising purposes, I use the industry standard, PLUS Coalition (Picture Licensing Universal System) to clearly outline and negotiate Commercial-Use Licensing Fees. Therefore, before you (the licensee) can use the images produced during your FotoGenie shoot in any commercial way, you must negotiate the terms and duration of use.
Exclusive vs. Non-Exclusive Rights
It’s also important to note, the photographer (the licensor) is the exclusive copyright holder for every image he or she creates – regardless whether it’s intended for commercial-use or not. As the licensee, you may purchase the non-exclusive rights to use the images commercially for a contracted fee and limited time period. This is a global industry standard.
However, if you ever want to own Exclusive Rights to any images in perpetuity, I require an Exclusive Rights Licensing Agreement.
If you’d like to read more about Commercial Licensing, why it’s a global industry practice and how it’s calculated by agencies and independent contractors alike, here are some links to industry leaders’ licensing blogs:
