With the current U.S. copyright laws as they are applied now, artists own all rights to their created images and sell/transfer rights to agencies and their clients. All questionable negotiations historically have defaulted in favor of the artist. Technically, even minor modification of the art requires your permission. You are renting out, not selling an image, unless explicitly stated otherwise on the contract.
Generally, think of usage costs as reflecting the amount of exposure a particular image may receive. The more exposure, the higher the price. Exact terminology may differ, but the semantics remain the same if all of the information is included in each negotiation. You can phrase it any way you want, but be clear about the intent by including information from all categories outlined here.
Also, consider the value of the image to you: A shot of a Coke can on a white background may have a more limited value since it features a licensed product and requires less of your creative input. How unique is the shot? How much of the creation of the shot was your concept?
Talent usage is similar, but there are differences in how each medium is priced: Talent usage (the right to use a model’s image in an advertisement or promotional material; you cannot use someone’s face if it is recognizable without their written permission) tends to be much more specific. Again, it is based on exposure. If you are responsible for talent usage, be sure the usage matches what you’ve been contracted to cover.
European terminology differs from U.S. terminology, particularly in the “Print” category. In Europe, “print” includes anything that is not broadcast.
Although category headings may vary (for example, one may use “time period” and another “length of time”), usage is defined by the following:
This is the length of time an image or images will be used: one time, one year, two years, etc. To avoid confusion, it is best to specify “from date of first use” or “from shoot date” when negotiating a contract for an image. Standard use generally defaults to one-year use (from shoot date) in a specific medium unless terms are otherwise negotiated.
This is the number of times within the time period that the image will be used.
LIMITED
You would use “limited” to specify, for example, a limited number of times, such as “2 insertions” or “a run of 5,000” within the time period sold. By the time you reach multiple insertions in publications such as People or USA Today, you may as well call it unlimited rights.
UNLIMITED
This terms means the image can be used an unlimited (unspecified) number of times within the time period sold. This does not allow a transfer of copyright to the agency or to their client, nor does it mean the same as “unlimited time.” You have sold only the rights to use the image, not for your client to resell it or allow a third party to use it.
TOTAL BUYOUT OF RIGHTS, USAGE AND COPYRIGHT
You have sold the copyright to the image, and the client has full rights to do whatever they want with the image. They own it, basically.
You may sell exclusivity of all images, which will prevent you from reselling any of the images during the time period your client has purchased. Unless otherwise stated, an artist has the right to sell an image to another client at any time—even if it is one currently licensed to a client. Use discretion if you chose to do so, however. Usage defaults to non-exclusive rights to the selected images only if not otherwise stated.
EXCLUSIVE
The image—and the outtakes, if specified—cannot be sold to anyone else during the time period sold.
EXCLUSIVE TO INDUSTRY
The image cannot be sold to anyone else within the same industry (liquor, banking, etc.).
NON-EXCLUSIVE
The image (and the outtakes) can be sold to other clients at any time.
The following categories specify the geographic area in which an image can be used.
United States only. Includes provinces of the United States, such as Puerto Rico and islands in the Caribbean.
NORTH AMERICA
Includes the United States and its provinces, and usually Canada and Mexico.
GLOBAL OR INTERNATIONAL
Throughout the world (use on the Internet is automatically global).
LOCAL
A specific city or area (for example, the San Francisco area).
REGIONAL
A specific region (the Midwest, Southeast, etc.).
EUROPE
Europe is often negotiated as a neat little package that includes Great Britain, Spain, France, the Netherlands, Scandinavia, Germany, and Italy.
BY COUNTRY
Specific countries can be sold, but if the exposure is large, such as Europe, it may be wiser to go with Global to make sure you are covered.
This category also gives the artist an idea of the degree of exposure. Consumer advertising generally receives more exposure and at a premium cost, while trade advertising is neither as expensive nor as far-reaching in exposure. Editorial is relatively cheap.
CONSUMER
This is usage that markets to “people who buy things”; it is purely for commerce (sells things), and the artist should have a piece of the action because of the high degree of exposure.
TRADE
Markets to “people who sell things to others”; it is lower down on the food chain and therefore not as expensive.
EDITORIAL
This is usage that is informational in nature, and not for commerce. Magazine layouts and textbooks fall into this category.
These categories further define how the images will be used. They can be segmented further by defining specific media for each.
A medium that sells something, like an ad or an outdoor board.
PROMOTIONAL
A medium that promotes something, like a poster for an event such as a concert.
PUBLIC RELATIONS
Similar to Promotional, but more awareness-driven and less commercial.
CORPORATE
Annual reports or internal materials like sales kits.
EDITORIAL
Informational in nature, not commercial. The image may accompany a newspaper or magazine article or be included in a textbook.
Media usage describes where an image will be seen and can be defined as precisely as you choose. As with your photography, negotiating with talent for the specific media will directly affect your costs. Broadcast use is seldom needed but can be sold if necessary.
ANY AND ALL MEDIA
Covers everything: all print, OOH (out of home), POS (point of sale), Electronic, and Broadcast. “Any” and “All” are somewhat redundant, but the title of this category drives home the idea that everything is covered.
ALL PRINT
Generally, anything printed onto paper that you can hold in your hand: a newspaper, a magazine, collateral (a mailer, brochure, etc. that features work you’ve done), and direct mail. You may expand your negotiations to include POS (point of sale) or OOH (out of home) by adding it specifically; otherwise, they are generally not included under this category. Exceptions may include GO cards (free postcard-size take-aways offered in displays in restaurants or entrances to public spaces) or similar limited-exposure items.
NEWSPAPER
Use this category in conjunction with Geographic Region. The size at which the images will run (full-page, half-page, quarter-page) is also a factor in negotiating a fee.
MAGAZINE
Use this category in conjunction with Market segments and with specific publications.
COLLATERAL
Includes anything in print that “goes along with” the campaign but is of secondary importance. Things like brochures, some mailers, and bill stuffers fit under this category.
Pieces that are mailed to people. The number of pieces used and the Geographic Region both affect pricing. Where the image is seen also makes a difference—whether it’s on the cover, envelope, etc.
ISM (IN-STORE MARKETING), POINT OF SALE (POS), OR POP (POINT OF PURCHASE)
Things that will be seen where the product is sold. Banners, signage, counter cards, displays, in-store posters, table tents, hangtags (hangtags could also be considered Packaging, so clarify this during negotiations).
PACKAGING
Something that contains or is attached to merchandise during its sale.
OUT OF HOME (OOH) OR OUTDOOR
Virtually anything seen outside of your home: outdoor boards, bus sides, transit stops, rail cards, GO cards (free postcard take-aways).
TRADE SHOW
Trade-show booths or materials used in a trade show. Show attendance and how the image will be used must be discussed.
ELECTRONIC
Media that is not printed: Internet, CDs for distribution, kiosks, in-store digital media, Jumbotrons, screensavers, and a host of others. Unless you negotiate rights for this specifically, images cannot be resold for this purpose. Because some of these uses can be considered ISM (In-Store Marketing) or OOH (Out of Home), this is a nebulous area.
INTERNET
Global Internet use. Where it will be seen (home page or inside page) may affect pricing. Sometimes the number of hits also makes a difference.
BROADCAST
Television.
MISCELLANEOUS
Things like ad planners (templated materials that can be customized by, say, a franchise to create their own advertising materials) must be negotiated apart from the other media because of the potential for widespread, undetermined use. Items for resale (limited-edition posters, T-shirts, etc.) must be negotiated separately.
This includes all of the images shot for the project, not just the selected image or images. You may often automatically sell rights to the entire body of works, but be sure to specify if you decide to sell the rights to only the selections. You will need to clarify at the beginning of the negotiation so there is no confusion later. You will also want to include a clause regarding whether or not outtakes may be sold as stock until the rights on the selections expire.
Because the exact date of first use may not be known at the time rights are sold, it follows that the date of expiration may not be exact. Factoring in the average time it takes to put an image through production after it is created, a rule of thumb is that first use generally begins about two months after the shoot date.
With the proper verbiage, you can create a checks-and-balance system to give the client an opportunity to decide if they want to purchase reuse. I recommend stating that the “client reserves first option of reuse upon expiration of current rights.” If the client does not renew the option, then at least you have given them the courtesy of first right of refusal and you can eliminate the “I wonder if it’s okay” situation. And you may end up with a reuse fee.
You will want to include the right to use the images for your own self-promotion during the rights period the client has purchased. Although this is usually not a problem, it doesn’t hurt to have it stated explicitly.
Be sensitive about showing images that have not been made public yet. Clients get very upset if an image is seen before their big launch, especially with confidential products.
Here are some samples of how to phrase your usage statement:
» One year unlimited exclusive international advertising and promotional rights and usage in any and all media for entire body of works, effective date of first use. Artist retains self-promotion rights forever, as does the agency. Client reserves first option of reuse upon expiration of current rights.
» Two years unlimited exclusive regional (Minnesota, Wisconsin, and Illinois) advertising and promotional rights and usage in direct mail for entire body of works, effective date of shoot. Artist retains self-promotion rights forever, as does the agency. Client reserves first option of reuse upon expiration of current rights. Image may be digitally enhanced in post-production.
» Unlimited exclusive global advertising and promotional rights and usage in any and all print for an unlimited time. Includes entire body of works. All images, including outtakes, will not be sold as stock until all usage expires. Client reserves first option of reuse in additional media. Artist retains self-promotion rights forever, as does the agency.
» Total buyout of rights, usage and copyright. Artist retains self-promotion rights. (Note: The word “buyout” by itself is meaningless and has not been established as an acceptable legal term.)