Copyright, Trademark, and Intellectual Property for Photographers

Lesson 5 of 15

Grant of Rights and Copyrights

 

Copyright, Trademark, and Intellectual Property for Photographers

Lesson 5 of 15

Grant of Rights and Copyrights

 

Lesson Info

Grant of Rights and Copyrights

So let's get into some of the clauses that should be in your client service agreement now I put this clause on the sly because I wanted you to actually look at it and let's read it and talk about what it's doing I don't want you to see contracts and say oh it's so overwhelming I want to deal with it so I'm just going to sign it and hope for the best that's what a lot of creative's do not just photographers we're not avoid that right? We're gonna be good businessmen and women and we're going to understand what we're going to when we sign a contract that's how you protect yourself it's how you preserve your rights to your intellectual property and it's how you make more money okay so let's actually read this this is a clause from an actual client service agreement it's actually included in a product that I created called legal nunchucks for photographers but it's a client service agreement and this is the grant of right cloth it may also sometimes be called an intellectual property right...

s clause okay, so when you see grant of rights or intellectual property rights or even it might say copyright it could have different headers but that's what this clause is doing this clause is either reserving the copyright in the images you produce or selling it giving it away right so this one is preserving it on dh and we'll look next at one that's giving it away so let's actually read it. Let's do that. Okay, so all images, digital images, photographs and prince collectively images that's. All that means that means that when we see images with the capital, I it's talking about images, digital images, photographs and prince produced by the studio that's. You are original works of authorship protected by the united states copyright act. Studio owns the copyright in and all intellectual property rights to all of the images and reserves the right to exploit the intellectual property rights for display, publication, advertising or other purposes. Whoa, what did that just do? What did that just do? Okay, this is super important. Okay, so this image is what you're doing is saying, hey, the images that I'm creating for you in this photo shoot, I actually owned them. A lot of people don't realize that as the photographer you own those photos that's your creative work that you authored just the same way as if you had written a book. It's, your book is your baby, right? Eh? So it doesn't matter that let's say you interviewed a bunch of people to provide content for the book it's still your book and you own it, so even though you've got a client they've hired you to do a shoot and you're taking a bunch of photos of them and, you know, for their personal use or commercial use, whatever use it is, you own those photos and you can make money from those photos in a lot of different ways. So that's, why it's so important to protect the copyright and to reserve the copyright in those photos? Okay, because then if you think about it like that, then you're creating thousands of photos every week, every time you do a new shoot with a client, you're creating all these photos that you can then sell in license in a variety of ways, not just making money from it from that particular client. Ok, so then that's, when I peed, gets really, really magical and that's what I get super excited about, you want your I p to be able to make money for you in a million different ways. That's the whole point of it, because it's intangible it's not like a tv where the tv is sold and then that's it, you know you sell it and somebody else owns it and that's it, you can always sell it once with intellectual property, like a photo, you can sell it thousands of times so you can make tons of money off of one single photo and that's what we want so that's why this is something you've got to know and you have to make sure it's in your client service agreement ok so studio owns the copyright in and all intellectual property rights to all of the images and reserves the right to exploit the intellectual property rights for display, publication advertising or other purposes yes what that says this says you can do whatever the hell you want with those photos ok that means you can sell them to a magazine you can sell them to a product company who wants to maybe use it on you know a product label you can use it in a book you can sell it to an author to use in their book you can do whatever you want you can displayed in your portfolio you khun do a gallery exhibition you know with those photos you can do whatever the hell you want with those photos that's what we want yes we want to do whatever we want with those photos because like I said then you can sell them in a variety of different ways so this is a magical thing ok and that's what I'm getting super excited about it okay so like I said, that sentence allows you to use that I p and you're getting permission from the client to do that you're you're making it super clear to them right up front these photos are mine so yeah, we're doing a transaction and we're going to do a photo shoot but I own those photos those are my babies okay, so you're making that clear to the client right up front okay, so upon receipt of final payment remember how I talked about you don't want to be transferring any copyright or any license without getting paid in full so that's what this clause does upon receipt of final payment I eat you've paid in full and what do you get? The client is granted a nonexclusive unlimited license to use the images for personal noncommercial purposes okay, so this could change right depending on the industry that you're in or who you're selling the photos too, but the client is granted a non exclusive meeting that they don't have the sole rights to use that photo. This is a mistake that has made often as well so you might reserve the copyright to the photos but then give them an exclusive unlimited life in well, if you do that, you can't use the photos, right? So you may own the photos but you can't do crap with them because you've given away the license so that's why it's really important to avoid doing that? So we want the license to be non exclusive, unlimited license a meaning unlimited them and that they can use it in personal, noncommercial purposes in any way they want so if they want toe print some of the photos and given a grandma they can and grandma can have him in her house and then they can have some of those photos in their own home on bacon, you know, do whatever the hell they want with them in a personal setting, they can't sell them in any way and that's, why we have non commercial purposes, right? If you've got business clients, this clause is going to change a little bit, so if you've got business clients who are purchasing head shots, right, they're going to use them in a commercial way because they're going to have him on their website, they might have him on their business cards, they might put it in marketing literature or advertisements so you can still limit their commercial purposes so they it might say something like, you know, client is granted and non exclusive, unlimited license to use the images in a nun in the following non commercial I'm sorry in the following commercial ways, ok? And so you can say they can use it to promote their business for business development purposes for marketing purposes on dh then you also might want to add something that specifically says, you know, they may not sell this photo or license this photo in any way. Okay, so you want to make it super clear for your commercial clients and might be a little bit funkier but honestly it's the same exact thing what you're doing here is preserving the right to your photos which allows you to then make revenue from that photo in a lot of different ways ok that's where the money is ok that's where you're getting you know checks coming in the mail from a variety of different places all the time which we like okay, so that's that's the grant of right klaus when you are reserving the copyright in the images you produce which means you are maintaining creator rights so that's that let's talk about if you plan to transfer the copyright to the client now transferring the right to the copyright is not the rights to the copyright the creator rights to the client is not necessarily a horrible thing. There may be some circumstances in which you want to do that but you should be charging a whole hell of a lot more because when you transfer the copyright you know when you transfer the creator rights to those photos you're then transferring also the right of the client to make money and all those ways like we just talked about if you reserve the right to the to the photos right so let's say that you have a photo that you do for, you know, a business client they want the copyright and so you charge more, right? And you sell them the copyright. Intellectual property has value, right? We talked about it two hundred, two hundred fifty a billion dollars and intellectual property is stolen every year in the u s alone, right? So your pipe has value. You know that without a doubt. So when you're selling the copyright to the photo, you're going to charge a whole hell of a lot more. Okay, this is not negotiable. You must charge more. Okay, good. Glad we got that cleared up. So if you're going to do that, if you're going toe, sell the copyright to the client, then you can expect to see that photo show up in an advertisement. You could expect to see that photo show up in some magazine. You know that client can use that photo and whatever the hell way they want, they can register the copyright for that photo and they own that photo can license it and use it in a million different ways. Okay, so you're basically essentially creating a profit center for that client. Whether they do that or not is a relevant. The point is they want to own the copyright, then they need to charge, then you need to charge more for it. They need to pay more for it. And you know, definitely take steps to educate your clients about this and maybe give them two separate prices so if clients say, oh, I want to own all my photos then you say ok, well tone all your photos into this price um and then they might say whoa that's a lot of money you can say well, there's another option you can get a limited license to the photos and that's this price over here you know? And for some clients they'd rather pay more and own the copyright you know, mostly probably commercial clients but for, you know, individuals and for family photos and weddings and things like that probably a limited licenses perfect cause they're really just using it for personal use right there really purchasing from you the capturing of memories right either it's an event or its people in their lives that's really what you're doing for them so for them a limited license makes sense so let's read this so we know what the hell it says okay, so I know it looks like it's a lot of words on the screen but let's break it down okay? So provided client has complied with the terms of this agreement again where we're making limitations on, you know, when they're getting the copyright, they're not getting the copyright unless they've done everything that they're supposed to do under your client service agreement so they're supposed to show up to shoot if they're supposed to provide certain props if they're supposed to pay a certain amount of money nothing transfers until all that happens and that's what that first little section does provided client has complied with the terms of this agreement and upon final payment to studio for services studio shall automatically okay, so it happens automatically. Nothing else needs to happen once this agreement is signed and you've been paid in full in the client did everything they were supposed to under the agreement this transfer happens automatically studio shall automatically thereby grant transfer a sign and convey to client and its successors in assigns so that means not just the client itself but the client's airs or you know if it's a particular business of the business is sold to someone else, then that owner gets these rights. Okay, so that's what that means successors and assigns all right title interest ownership and all subsidiary rights including all rights accruing to studio under the united states copyright act in and to all works of authorship and all copyrights, patents, trade secrets and any other intellectual property rights, business concepts, plans and ideas reports, manuals, visual aids documentation, inventions, processes, proposed products, services techniques, marketing ideas commercial strategies that have been well will be created by studio for client the work okay so the work is a lot broader than just the photo itself, right? So let's say you worked with the client to come up with a concept for the photo let's say it's an advertising campaign and you're helping them come up with the set and the look and the feel and all of that you're selling all of that with a clause like this ok, to the client. The client owns it so that look that strategy they now own in that process that you used they now own it. Um so your transferring all that to the client, which is the work on dh the client can use throughout the world in perpetuity. This is a phrase that's used a lot it's like legalese language it's actually something that caused hell for me on the bar exam because it's used in a state planning and it's super confusing but in perpetrated in perpetuity means forever forever ever never to infinity and beyond. Okay, so that's, what in perpetuity means so now you know that little bit of legal language which you know on ly people have gone to law school no. So our unless you do is some type of a state planning so for used throughout the world in perpetuity, meaning forever in any manner or media, whether now known or hereafter invented ok, so that's a lot right? So look all of this is the rights that you're giving to the client all right that's a lot of stuff, so if you're going to give them all this, you need to be charging for it all right? So you're giving them all of these rights and then here's here's the kicker right to make it really solidified for the client studio here by further waves any moral rights it may have with regard to clients uses of the work so that's sort of means that even though you're the creator, you're giving away your rights as a creator you're saying you know what? I didn't birth that baby these people birth that baby, you know, because I basically sold that process to them, so now you understand what I'm saying, you have to charge an arm and a leg for this you don't give away copyright rights without charging a substantial amount of money for it. So you're waiving any more rights you may have with regard to clients uses of the work and you're agreeing at clients reasonable expense so client has to pay for it to cooperate as may be necessary to assist client and enforcing client's rights in the work. So what does that mean? That means that if the client then wants to register the copyright and has any issues with doing so that you have to help them you have to help them preserve their intellectual property rights in the photos that you produced ok, so we're seeing how extensive this is notwithstanding the foregoing here's a little tidbit for you okay, this is this is you get a little something in this s o notwithstanding the foregoing client brand studio a worldwide nonexclusive revocable license meaning they could take it back okay revocable means I can take it back if I want tio irrevocable obviously means that I can't take it back so all you're getting in this deal is money and oh worldwide nonexclusive revocable license to display the written or visual content developed by studio for client on ly an association with studios portfolio and for other business development and marketing purposes so that means that you can take this you know whatever you created the photos right um and you can use that in your portfolio so if you have an online portfolio on your web site if you you know have like a little now film really that you use for marketing purposes, you can use it in a marketing sense. Um so that's the only way that you'd be able to use those photos after this so that's why I'll say one more time when you're selling the entire copyright you gotta charge a lot more because you're giving away all of your rights to the to the photos the question is if you are if you are giving away or if you're selling the copyright ownership to the photos, how much more should you be charging versus if you are charging if you're not giving that away and you're preserving the copyright so that's the question, so obviously it varies, but I would say I've seen thousands more charged okay for the full copyright rights to a photo versus just a limited license to use the photos. Okay, so essentially you should think of it like this one piece of what you're selling is the service you're showing up somewhere, and you're taking pictures of someone or something, okay, so that's the service and when you sell a limited license with that, maybe attack a little bit on for the limited license to use those photos in some very specific limited waste, if you are giving away the copyright, then you should think of it as all right, I'm charging for my service. So whatever your time is worth, right the time tio prepped for this shoe to get all the information ahead of time, the time to actually take the photos, the time to edit them, the time to go over them with the client you're charging for that time, right? That energy, that creative know how that you have that's, what you're charging for their you're charging for the service, all right, and I've paid thousands of dollars for that service myself for my own headshots okay, so you're charging for that service then it's a separate charge your then charging for the total copyright so the entire ownership of those photos that's a separate feet and I would charge substantially more so like I said, it varies a lot based on your experience who your client bases and things like that for business I would expect a business would pay a lot more than maybe a personal human you know, an individual s o I would say thousands more you know I'll just put it that way you want to charge a whole lot more for the total ownership rights and part of the reason is you want tio um discourage it ok? You want to maintain those rights to those photos because let's say you take some photos of you know a pregnant mom right? Your maternity photographer you take some photos of a pregnant mom they come out gorgeous and so you let her use her photos in a personal way she has her little album and she looked at them at home and she s pond memories blah blah blah right so that's that's how the client is using them you can then take those maternity photos and sell them to a magazine for pregnant moms and then you could also sell them to, you know, a company that's selling something like you know that belly cream that they have for pregnant moms so that you don't get stretch marks maybe they want a beautiful photo on the front of their and you can provide your photo to them so you can sell it again okay, so you could sell that photo many times over and make a lot more money from it then just selling it to the person that you who took the photos that you took the photo of s o that's how you want to think about it you want to definitely reserve the copyright to your photos in almost all cases unless you're dealing with a business who's willing to pay top dollar tow own the photos okay, so I'm talking, you know, five thousand ten thousand dollars for copyrights to a limited set of photos. Ok, so that's what I that's what I would be charging and that's how you should be thinking about it from so and like I said, you want to take steps to not just, you know, provide the service to your clients, but you have this portfolio photos. Let me give you another example of a business that recently made is making a lot of money photographers were making a lot of money off of their I p that's just sort of sitting in their business so the business is called death to the stock photo um that's, the name of the business is actually recently started not that long ago started by two photographers, I believe, who have a ton of photos in their business, right? So they've been taking photos for years. They've got all these photos, and they reserve the copyright to all those photos when they were working with clients, so they've got a million amazing photos, like a whole library full with a certain aesthetic right there, sort of, like kind of hipster aesthetic, okay on these photos, which could be very appealing to people, you know, who want to reach hipsters, right? Or who just appreciate that aesthetic. So they've got all these photos, and they decided, you know, what? Stop photography is not my favorite there's, not enough hipsters in stock photography, so let's do our own sort of stock photography situation, why don't we just give away all these have made it amazing photos that we have to, you know, different people, so that's what they did, and obviously the goal is to make money, okay? So they're not just being generous, so what they did was they started a mailing list, and they give away a pack of photos once a month, so if you're on their mailing list, you can get a pack of photos from them once a month now. The goal here is to up sell you to their premium subscription where you pay ten dollars a month to get access to their library of photos so they're just taking photos that they got just sitting in their old closet you know who are their virtual closet um so they have about four hundred photos this particular company so you've you paid ten dollars a month you can get access to this library photos and you can use them on your block or in your advertising or in your marketing we're in different ways and obviously like I said, they have a certain aesthetic so they appeal to a certain type of customer so that's one way simple simple way all they did was create a simple website created a subscription plan created a plan to get people to join their mailing list so they've got a pool of customers to choose from to up sell to their premium subscription and then they have so many people paying them ten dollars a month which can really add up right if they have a thousand people then that's you know, ten thousand dollars a month that they're making from there just library of photos you cannot do that if you haven't reserved the copyright if you've done this right and not the previous um we show you if you've done if you haven't done this one and you have this in your client service agreement then you have a reserve. Those rights, and you can't do things like that. So, that's, why? I say it's really important. Reserve those rights, and then also charge a chunk of money for it if you don't.

Class Description

Whether you photograph weddings, capture senior portraits, or shoot high-fashion images, understanding key concepts like intellectual property, copyright, and trademarks is an essential part of succeeding a working photographer.

Join Rachel Rodgers to explore the core concepts of intellectual property that every photographer should know. You’ll learn when and why you need model releases. You’ll also learn how to create client service agreements that protect your best interests. Rachel will also guide you through common infringement issues many photographers face.

The skills you learn in this course will enable to you to be your own best advocate, and both defend and profit from your images.

Reviews

a Creativelive Student
 

This class is valuable. I feel like a bandit for what I paid. Rachel Rogers is definitely in your corner to help you make sense of the nebulous nuances that could very well be the difference between you making or missing your money goals.