Topic: Commercial Licensing, Wedding Photography
Time Investment: 6 Minutes
Suggested Product: Wedding Vendor Photography License
It can be as simple as a wedding vendor giving you their business card at a wedding and asking you to email them a couple of images of their flowers, or cake, or the getting ready photos with the makeup artist or hairdresser’s work on display.
All of a sudden, you find that you need to think through if and whether you will give a vendor your images and whether you will charge a license fee for their use in their portfolio or in the advertising collateral or website.
You, as photographer and creator of these images hold copyright over these images including the right to distribute, share, or sell licenses. While the couple who has contracted with the photographer may have paid for a license to the images, this license is usually not be exclusive, nor does it automatically convey the right to further distribute the images.
So what do you do when faced with this situation?
You have a few options:
- Refuse to give them images because you hold copyright in the images and you are not compelled to share them with anyone.
- Share one or more images with a specific wedding vendor without charge and hope that they don’t misuse the image.
- Share one or more images with a specific wedding vendor without charge with a written agreement as to conditions and limitation on the license.
- Share one or more images with a specific wedding vendor with charge commensurate with planned commercial use.
Building strong relationships with vendors is an important part of building a thriving wedding photography business. Mutual referrals can be a key part of growing your business with your target market. Many photographers choose to provide free (or no fee) marketing images to other wedding vendors – with the couple signing off on these first.
Where to start?
First, Ask the vendor what the intended use of the images will be. Will these images be strictly for business to business presentations? Will they be used for brochures or posters? Their portfolio? a full-page advertisement for a national magazine? These uses and the production runs may be something you want to specifically include in the text of the license.
The next question you should ask is how long they intend to use these images for? It may seem like an odd question but it is an important one none the less. Most licenses are drafted with a time limit because clients often do not need an image for life. It is rather normal for clients to overhaul their products every few years to re-brand themselves.
You can, but do not have to, levy a fee for any kind of license for the non-commercial or commercial use of photographic images. Regardless of what kind of license you decide to offer, and whether you levy a fee for such a license, a written license agreement is important to ensure that your rights are protected and everyone understands where they stand. An example is a vendor usage agreement that states the vendors can use the images to promote their wedding-related business provided they put photo credit next to the images. If the usage is for web, they must also provide a live link to your website.
Some photographers report receiving many client referrals because of such a no-fee commercial license. But this isn’t the only option.
In determining a pricing scale for commercial licenses, Peter House offers some practical advice on determining fees.
In any case, the license agreement should include a stipulation that the licensee acknowledges his or her own need to obtain a release from any identifiable party depicted in photos used for commercial purposes (particularly where that use might be construed as an endorsement).
This stipulation is important, because while you may grant a license to a wedding vendor for use of copyrighted images from a wedding, that may not necessarily mean that the vendor will be able to use those images commercially to advertise their business. This is especially so if photos are used to imply endorsement of a product or service by anyone identifiable in those images. This can also be referred to as the publishing party needing a model release.
You could, as photographer, obtain a release from your clients and anyone else identifiable in your images on behalf of yourself and any other party to whom you license the images. But the legal liability for use rests with the publisher, not the licensing photographer, unless you have made assertions or promises to the licensees that you have a release on file. In which case, if you don’t have an appropriate release and you assert that you do, then your liability would likely be to the publishing party who, if sued by your client for misusing the images, would turn around and sue you.
To protect your own relationships with your own clients, it is a good idea to ensure that they understand and are comfortable with the uses to which your licensees intend. This can be included as part of a client meeting, or a contract review call. Although you wouldn’t be liable to the clients for someone else’s commercial use of their likenesses (absent misrepresentation to the contrary), your brand and your reputation may suffer if your clients are blindsided by such use.
Ideally, you will be able to resolve issues relating to offering licensees to vendors prior to the event, although it may take the cooperation of your clients and your familiarity with vendors to do so. At least think through how you want to handle these issues, before you are faced with them.
You may also want to consider how going beyond what you are legally entitled to might build your brand – for example, you may not be legally required to obtain client permission to offer a license to a photograph of some décor, but by keeping the client informed you may build goodwill for yourself and your vendor.
There has been some discussion in case law about whether a wedding is a public or private event, for the purposes of privacy. This isn’t strictly relevant here, but what is at play is a broader discussion of image use. Some couples are thrilled by the possibility of having their wedding and wedding images publicized, but publications (web and print) often have exclusivity requirements prohibiting distribution of professional images, including but not limited to décor and design, on social media.
If a vendor shares professional images on social media, they may inadvertently disqualify the couple (and the photographer) from having their wedding featured (or published) in a print magazine or website. As a photographer, you may do well to have a conversation with the couple on their desires for privacy and publicity as it relates to the images of their wedding.
Creative Commons License
If you decide that it is in your brand’s best interest to share images without charge, you may find attaching a creative commons license something you want to explore. You need to be aware, that once release with a creative commons license, you have little to no control over how and where the image is used. The same limitations on using an image with an identifiable person that could be construed as endorsing a product or service, and poorly lit images still apply.
You may decide to attach a commercial or non-commercial creative commons license to lower resolution versions that would be suitable for web use, but more difficult to use in print thus providing a natural deterrent to infringement.
Attaching a non-commercial creative commons license would ensure credit being provided to the photographer/copyright owner, and would also require any party wanting to make commercial use of a photo, such as for advertising, would have to contact the photographer for permission. Failure to do so would give rise to a possible infringement claim. If you want a concise overview of what Creative Commons is and why it is valuable, I highly recommend this video.
Finally, something to think about. There has been a seeming rise in vendors bringing their own photographers to weddings. Which begs the question: Do you have a stipulation in your client contract that you are to be the exclusive vendor for photography services for their event? If so, a Texas case may prove to be educational. Texas courts upheld a photographer exclusivity clause, and offered some reinforcement to the idea that couples need to be informed of their rights as to the use of photographers by vendors.
When vendor-photographers shoot marketing images at couples’ weddings, they do not have contractual agreements with the couples, which means their photos can end up anywhere.
Since that lawsuit, some wedding vendors have added the right to hire and bring their own professional vendor-photographers to their clients’ weddings to their contracts. This is something you may want to ask your clients about when you meet with them – in particular, couples need to be made aware of possible conflicts of interest. Specifically, do couples want multiple professional photographers competing against each other for the best photos for vendor business marketing, potentially interfering with the work of the wedding photographer?
As with all things, it is important to weigh what is important to your brand and your business relationships and how your values align with your business practices as you decide how to address commercial licenses for image use by wedding vendors.