All About Usage Licenses

All About Model Usage Licenses

I know 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 what�s the big deal?

�� Let�s 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 her pictures:

But Don�t I Own The Pictures?� They Are of Me!

�� No, you don�t 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 Can�t Publish My Own Pictures?

�� Yeah, pretty much.� The photographer 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 Photographer Have?

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 publicly;

(5) to display the copyrighted work publicly

Did you notice that word �exclusive�?� That means he is the only person who can do any of those things.� You can�t.

OUCH!

OK, as things turn out, it�s not quite as scary as it seems.� At first blush, according to the law, if he gives you a picture, you can�t make a copy of it, can�t put it on your website, can�t 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, it�s often not that bad.� Even so, the photographer has a lot of control over what you can do, and you need to know it.�

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 can�t make copies and sell them, and neither can the people you sell them to.� You can�t give someone else rights that you don�t have.

Can I Put My Pictures On My Pay Site?

No, without a usage license, you can�t.� That would be a �public display�.� You can�t even put it on your own personal modeling site for self promotion without a license from the photographer.

Can I Retouch My Pictures?

What�s that, you say?� You made the mistake of shooting with some photographer who gave you unretouched images?� Silly thing to do.� But you�ve done it.� So now what.� Are you stuck?

If you don�t 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.)

If 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 prohibits it.

If you start getting creative and making big changes to the pictures, you need permission to do that.� Otherwise you are creating a �derivative work�, and you can�t do that without permission.

Can I Put the Pictures On My Composite Card?

Without a usage license, no.

Can I Put the Pictures In My Portfolio?

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 can�t put them in your portfolio, because to do that you would have to print them � and that�s �making a copy�, 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 hadn�t been scared.� So now it�s 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 don�t 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, it�s analogous to a Model�s release, only in the other direction.

So How Do I Get One?

One simple way:� ask for it.

On a commercial shoot, the answer will be �no way in hell�.� 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 it�s for some very unusual situation.� The photographer should grant you a license to use the pictures in whatever way you paid for.

If it�s a test shoot, or a TF*, you should consider asking, but may decide it�s 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 doesn�t 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.� We�ll get to that in a moment.

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, �Uh . . . what?�.� 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 can�t be smarter, or more prepared, than the photographer.

So What Does the License Need To Say?

It doesn�t 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, that�s probably a good idea.� For shots you just want to use for self promotion, it�s 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 weren�t as bad as they seemed by reading the law?� This is why.��

You won�t find it in Title 17, but US law allows you to get a usage license �by implication� from what is said, or what is done, or the circumstances of a shoot.� Here�s an example:

Suppose 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 don�t know that, and believe they have complete control of �their pictures� in such circumstances.� Remember the part about �no rule that says a model can�t be smarter than the photographer�?� Now you are.)

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.� What�s more, if you give him �consideration� (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 can�t take it back.� It�s 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 doesn�t 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 Pictures, Right?

No.� You can�t.� 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 doesn�t 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 don�t 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 it�s in writing, there is no question that you have it.� If it�s in writing, you can prove it to other people (like that pesky clerk at Wal-Mart who won�t 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 be sweet.

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 it�s in that document that he calls a �model�s release� 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 can�t 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 won�t work for what you need, negotiate with him about it, or don�t do the shoot.� This is another reason why models should read the �model�s release� before a shoot � lots of things get snuck into them which aren�t 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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