All About Model Usage Licenses
there is not a single model anywhere out there who has lost sleep worrying
about what usage licenses were, and whether she needs one.† Most of you have never even heard of them,
including most of you who have been professional models for a long time.† So whatís the big deal?
††††††††††† Letís start
with the first two questions and answers below, taken from the article on model's releases.† Our new model has suddenly run up against the
fact that there is such a thing as copyright, and the photographer owns it for
But Donít I Own The Pictures?† They Are of Me!
††††††††††† No, you
donít own them.† The photographer
does.† That was decided decades before
you ever stepped into the studio when Congress wrote the copyright laws.† The photographer owns the copyright, and the
right to publish the pictures.† You can
change that, if he is willing, by written contract, but it is a very unusual
photographer indeed who will agree to that.
Wait!† Does That Mean I Canít Publish My Own Pictures?
pretty much.† The photographer owns
them, and owns the right to control publication.† To publish them yourself, you need a usage license from the
photographer.† You may already have one,
and him not know it, depending on the nature of the shoot.
So What Rights Does the
By law ( Title 17 of the U.S. Code ) the
photographer has the following exclusive rights:
(1) to reproduce the copyrighted work in copies;
(2) to prepare derivative works based
upon the copyrighted work;
(3) to distribute copies of the
copyrighted work to the public by sale or other transfer of ownership, or by
rental, lease, or lending;
(4) to perform the copyrighted work
(5) to display the copyrighted work
Did you notice that word ďexclusiveĒ?† That means he is the only
person who can do any of those things.†
OK, as things turn out, itís not
quite as scary as it seems.† At first
blush, according to the law, if he gives you a picture, you canít make a copy
of it, canít put it on your website, canít change it (make derivative works),
sell it, rent it to anyone, or show it to anybody (at least not to a lot of
people at a time).† In actual practice,
itís often not that bad.† Even so, the
photographer has a lot of control over what you can do, and you need to know
Can I Sell My Pictures?
Yes, legally, you can.† But without a usage license, all you can
sell are the physical pictures the photographer gave you.† You canít make copies and sell them, and
neither can the people you sell them to.†
You canít give someone else rights that you donít have.
Can I Put My Pictures On My
No, without a usage license, you canít.† That would be a ďpublic displayĒ.† You canít even put it on your own personal
modeling site for self promotion without a license from the photographer.
Can I Retouch My Pictures?
Whatís that, you say?† You made the mistake of shooting with some
photographer who gave you unretouched images?†
Silly thing to do.† But youíve
done it.† So now what.† Are you stuck?
If you donít have a usage license,
you can make small changes to the image like retouching skin blemishes, but
only on the physical copy he gave you.†
(A minor exception:† if he gave
you a signed and numbered print, you may not be able to do even that.)
you do have a usage license, you can do that minor retouching on all the copies
of images you use within the terms of the license unless the license
If you start getting creative and
making big changes to the pictures, you need permission to do that.† Otherwise you are creating a ďderivative
workĒ, and you canít do that without permission.
Can I Put the Pictures On My
Without a usage license, no.
Can I Put the Pictures In My
Maybe. If the photographer gave you prints in a size suitable for your
portfolio, you can put them in it, and even show it to people.
If he gave you some other size, or
digital files, No.† You canít put them
in your portfolio, because to do that you would have to print them Ė and thatís
ďmaking a copyĒ, which you cannot legally do without a usage license.
A lot of commercial print shops will
enforce this on you.† If you take a
picture or CD down to have it printed, they may require a copy of your usage
license, or refuse to make the prints.†
As a matter of law, that is what they are supposed to do.
OK, You Got My Attention
Good.† Sometimes it takes a 2x4 smack between the eyes.† This is one of those times.† No way you were going to read this far if
you hadnít been scared.† So now itís
time to tell you the rest of the story.
So What is a Usage License?
A usage license is permission from
the photographer to do things that, without his permission, only he can
do.† It can be oral or in writing.† It can be exclusive (meaning only you get a
license, but then it has to be in writing) or nonexclusive (meaning he can
license other people to make copies and display the images).† It can be total (he can assign you all the
rights he has under copyright law, but donít hold your breath for that one) or
limited (he can let you do some things, in some places, for a while).† Although it is dealing with different law
and different rights, itís analogous to a Modelís release, only in the other
So How Do I Get One?
One simple way:† ask for it.
On a commercial shoot, the answer
will be ďno way in hellĒ.† Every
time.† In fact, on a commercial shoot,
there is no point in asking.† The
photographer would get chewed out big time by his client if he let you publish
the pictures before the client did.
If you commissioned the shoot, and
are paying for it, you should ask, and you should get a license, unless itís
for some very unusual situation.† The
photographer should grant you a license to use the pictures in whatever way you
If itís a test shoot, or a TF*, you
should consider asking, but may decide itís not the thing to do.† If you want to do more than use your
pictures for your own personal purposes, and to promote yourself as a model,
you ought to ask for a license to let you do those other things.† And it certainly doesnít hurt to have a
license for those self-promotional uses, either.† Even so, you may not need a written license, depending on what
you intend.† Weíll get to that in a
But first, on a fairly high
percentage of test and TF* shoots, when you ask for a usage license from the
photographer, he will say, ďUh . . . what?Ē.†
Unless he is a working commercial photographer, he may not know what
they are, or have one handy.† This is a
good time for you to have one ready for him to sign.† There is no rule that says a model canít be smarter, or more
prepared, than the photographer.
So What Does the License
Need To Say?
It doesnít have to be some fancy
legal document, or a formal contract, or anything like that.† Nothing to hyperventilate about.† It can be as simple as a couple of sentences
describing the things you want to do with the pictures, and the photographer
signing that he agrees to it.† Or, if
you have a little extra cash, you can go to a lawyer who specializes in
Intellectual Property law and have him draft one up for you.† For pictures that you have some kind of
Grand Plan for, thatís probably a good idea.†
For shots you just want to use for self promotion, itís likely not
necessary to get a formal legal document drawn up. Note: Just as a model release only needs to be signed by the model, the usage license only needs to be signed by the photographer. In fact, it's not a good idea for the model to sign it; if the license isn't exactly what she wants, signing it may result in losing rights she otherwise has.
The Implied Usage License
Remember we said that in practice
things often werenít as bad as they seemed by reading the law?† This is why.††††
wonít find it in Title 17, but US law allows you to get a usage license ďby
implicationĒ from what is said, or what is done, or the circumstances of a
shoot.† Hereís an example:
you call up a photographer and tell him you are a model who needs some pictures
done to market yourself with.† He agrees
to do them, you shoot, and he gives you the pictures.† Congratulations, you have a limited usage license from the
photographer. (We need to point out that lots of photographers donít know that, and believe they have complete
control of ďtheir picturesĒ in such circumstances.† Remember the part about ďno rule that says a model canít be
smarter than the photographerĒ?† Now you
By law, when you and a photographer
shoot and he gives you pictures, he is obligated to let you use them for the
purpose for which you agreed on the shoot.†
Whatís more, if you give him ďconsiderationĒ (meaning something of
value, like money or a model release, or your services as a model for him to
practice, if he says he needs it), once that license is given to you, he canít
take it back.† Itís yours.† You can go off and merrily do whatever you
and he agreed you were going to do in the first place, even if he decides he
doesnít like it.† So now, you can use
those pictures on your comp cards, put them on your modeling website and give
them to your agency without worrying about some other license.† You already have one.
So Now I Can Sell The
You canít.† Not unless it was
clear from your behavior and request to him that you intended to.† You have a limited license, and the
limitations are bound by what is reasonably implied in the stated intended
use.† Nothing else.
So That Means I Have an
Implied License After a Photo Shoot, Right?
† No, maybe not.† The license doesnít just automatically
happen because you do a shoot.† It comes
about because of the reasonable expectations of the parties at the shoot.† If you go to a paid commercial shoot, the
client has no expectation that you will be publishing his pictures, and you
donít have any implied license to do it.†
Your intent for the pictures needs to be stated up front, or implied by
the circumstances, and understood by the photographer, for that implied license
to come into existence.
Is It Preferable to Have a
Written Usage License?
Generally, yes.† If itís in writing, there is no question
that you have it.† If itís in writing,
you can prove it to other people (like that pesky clerk at Wal-Mart who wonít print
your pictures without it).† If you and
the photographer have a falling out, and he files a copyright violation notice
(called a DMCA notice) with the person who hosts your modeling website, asking
them to remove his pictures from your site, you can prove to the host that you
have permission.† You can even sue him
for filing a false notice.† Payback can
Is It Ever Preferable to
Have an Implied License?
Yes, it can be.† Some photographers have licenses that
include restrictions which would not apply to an implied license under those
circumstances.† If he gives you his
written license before the shoot, or itís in that document that he calls a ďmodelís releaseĒ
that you sign, you are bound by those restrictions.† (But if he springs a written license on you after the fact, when
you already have a broader implied license, and he has received some sort of
consideration from you, the implied license still applies. Just don't sign the thing. † He canít take back those rights once you
have them unless you agree to it.)
Read what he gives you before the shoot and
what you sign very carefully, and if he has put in something that wonít work
for what you need, negotiate with him about it, or donít do the shoot.† This is another reason why models should
read the ďmodelís releaseĒ before a shoot Ė lots of things get snuck into them
which arenít really part of a release.
***Disclaimer***:† The author is not a lawyer.† THIS IS NOT LEGAL ADVICE.† It is intended to sensitize you, and to
generally explain things you need to be concerned about.† If you have specific problems, consult a
specialist in Intellectual Property Law or Entertainment Law.
This article applies to the United States only.† Other countries have different laws.† Your mileage may vary.
Throughout this article, models are referred to as females,
and photographers as males.† We know
that there are male models and female photographers, but we are playing the
odds.† Get used to it.
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