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.
Any parts of the agreement below that are marked in red are variables that should be changed to accommodate your business. This sample agreement is for general use and so, may not be appropriate for every situation. Please read it carefully and make changes as necessary, as not all sections may apply to your particular business. You may want to have an attorney review this Agreement before actual use. See the Art Law Journal’s Terms and Conditions and Disclaimer for more information on our policies regarding sample documents.
ARTIST LICENSING AGREEMENT
This Artist Licensing Agreement (the “AGREEMENT”) is entered into effective this date, [DATE] between [ARTIST NAME] (“ARTIST”) and [CLIENT NAME] (“CLIENT”). All references to the Client in this Agreement shall include Client’s parent companies, affiliates, and subsidiaries.
Scope of this Agreement. This Agreement applies to any image, graphics, digital assets, or digital images created or taken by Artist and delivered to the Client (collectively known as “IMAGES”). This Agreement governs the relationship between the parties and in no communication or other exchange, shall modify the terms of this Agreement unless agreed to in writing.
Rights: All Images and rights relating to them, including copyright and ownership rights in the media in which the Images are stored, remain the sole and exclusive property of the Artist. This license provides the Client with the limited right to reproduce, publicly display, and distribute the Images only for the agreed upon terms as set forth in the Client Invoice and signed by both parties. Images used for any purpose not directly related outside of those terms must be with the express permission of Artist and may include the payment of additional fees, unless otherwise agreed to in writing. Images may contain copyright management information (CMI) at the discretion of the Artist in the form of either 1) a copyright notice © and/or 2) other copyright and ownership information embedded in the metadata or elsewhere unless otherwise agreed to by the Parties. Removing and/or altering such information is prohibited and constitutes a violation of the Digital Millennium Copyright Act (DMCA) and Client will be responsible to the Artist for any penalties and awards available under that statute.
Relationship of the Parties: The parties agree that Artist is an independent contractor and that neither Artist nor Artist’s employees or contract personnel are, or shall be deemed to be, employees of Client. No agency, partnership, joint venture, or employee-employer relationship is intended or created by this Agreement. Neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement. Artist and the Images or any other deliverables prepared by Artist shall not be deemed a work for hire as defined under Copyright Law. All rights granted to Client are contractual in nature and are expressly defined by this Agreement.
Creation: The manner and method of creating any Image is solely at the discretion of Artist and the Client has no right to control Artist’s manner and method of performance under this Agreement. Artist will use his/her best efforts to: (a) ensure that the Images conform to Client’s specifications; and (b) submit all Images to Client in publishable quality, on or before the applicable deadlines.
Delivery: Artist may select delivery of photographs in JPEG, TIFF, PNG, or other standard formats at a resolution that Artist determines will be suitable for the Images as licensed. It is the Client’s responsibility to verify that the Images are suitable for reproduction and that if the Images are not deemed suitable, to notify the Artist within five (5) business days. Artist’s sole obligation will be to replace the Images at a suitable resolution but in no event will Artist be liable for poor reproduction quality, delays, or consequential damages. Unless otherwise specifically provided, Artist is not responsible for providing images 1) larger than 8”x10” at 300 dpi or 2) in a format higher than 8-bit or in RAW format. Artist has no obligation to retain or archive any Images delivered to Client.
Fees: All fees and expenses payable under this agreement are required no later than ten (10) business days from the delivery of the Images and payable irrespective of whether Client makes actual use of the Images. If full payment has not been received within thirty (30) days all rights are revoked at Artist’s discretion. In the event rights are revoked, all images in the possession of Client will be removed from all forms of media and permanently destroyed within ten (10) days. Client shall provide Artist with written statement that all images have been removed and destroyed.
Cancellation: If Client cancellation of this Agreement prior to 1) Stated delivery date on the Client Invoice or 2) within one (1) month of this agreement, Client will pay any expenses incurred and a twenty-five (25)% cancellation fee. For Client cancellation within two (2) days of the delivery date, Client is responsible for one-hundred (100)% of the fee and any expenses incurred.
No Exclusivity: This Agreement does not create an exclusive relationship between the parties. Client is free to engage others to perform services of the same or similar nature to those provided by Artist, and Artist shall be entitled to offer and provide services to others, solicit other clients and otherwise advertise the services offered by Artist.
Transfer and Assignment: Client may not assign or transfer this agreement or any rights granted under it. No amendment or waiver of any terms is binding unless in writing and signed by the parties. However, the invoice may reflect, and Client is bound by authorizations that could not be confirmed in writing because of insufficient time or other practical considerations.
Indemnification: Client will indemnify and defend Artist against all claims, liability, damages, costs, and expenses, including reasonable legal fees and expenses, arising out of the creation or any use of the Images or materials furnished by Client. It is the Client’s responsibility to obtain the necessary model or property releases are ensure they are full effect and in force.
General Law/Arbitration: This Agreement sets forth the entire understanding of the parties, and supersedes all prior agreements between the parties. This Agreement shall be governed, interpreted and enforced in accordance with the laws of the State of [STATE]. Any claim or litigation arising out of this Agreement or its performance may be commenced only in courts physically located in [COUNTY] [STATE], and the parties hereby consent to the personal jurisdiction of such courts. In the event of any litigation arising out of or relating to this Agreement, the prevailing party shall be entitled to recover its attorneys’ fees incurred in the litigation. If parties are unable to resolve the dispute, either party may request mediation and/or binding arbitration in a forum mutually agreed to by the parties.
Severability: If one or more of the provisions in the Agreement is found invalid, illegal or unenforceable in any respect, the validity and enforceability of the remaining provisions shall not be affected. Any such provisions will be revised as required to make them enforceable.
Waiver: No action of either party, other than in writing agreed to by the parties, may be construed to waive any provision of this Agreement and a single or partial exercise by either party of any such action will not preclude further exercise of other rights or remedies in this Agreement.
IN WITNESS WHEREOF, the parties have caused this Artist Licensing Agreement to be duly executed as of the dates written below.
By: __________________________________ Name: __________________________________
Title: __________________________________ Date: __________________________________
By: __________________________________ Name: __________________________________
Courtesy of the Art Law Journal (please do not remove)