Ad Agency Guide To Photography Usage Terms

BASIC INFORMATION
With the current US 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 have historically defaulted in favor of the artist. Technically, even minor modification of the art requires the artists’ permission. You are RENTING, not buying an image unless explicitly stated on the contract.

Generally, think of usage costs 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 outline below. Talent usage is similar, but there are differences in how each medium is priced out: talent usage tends to be much more specific. Again, it is based on exposure. European terminology will differ from US terminology, particularly in the “Print” category. In Europe, “Print” includes anything that is not broadcast.

Usage is defined by the following:

TIME PERIOD or LENGTH OF TIME
This is the length of time an image or images will be used: one year, two year, one time, etc.. It is best to specify “from date of first use” 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.

RIGHTS/QUANTITY
This is the number of times within the time period that the image will be used.
Limited: A limited number of times such as “2 insertions” or “run of 5,000” within the time period purchased. By the time you reach multiple insertions in publications such as People or USA Today, you may as well buy unlimited rights.
Unlimited: Can be used an unlimited (unspecified) number of times within the time period purchased. This does not allow a transfer of copyright to you or to your client, nor does it mean the same as “unlimited time.” You both have only the rights to use the image, not to resell it or allow a third party to use it.
Total Buyout: You have purchased the copyright to the image and have full rights to do whatever you want with the image. You own it, basically. In the case of illustration, you own the rights, but you do not necessarily own the final art. That usually requires a very specific, carefully worded purchase agreement. Expect to pay dearly for this usage!

EXCLUSIVITY
I recommend purchasing exclusivity of all images to prevent the resale of any images during the time period you’ve 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 your client. Usage defaults to non-exclusive of 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 purchased.
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

GEOGRAPHIC REGION
This is the area in which the images will be seen.
National: US only. Includes provinces of the US such as Puerto Rico and the Caribbean.
North America: Includes the US and its provinces, Canada and Mexico.
Global or International: Throughout the world (internet is automatically global).
Local: Specific city or area (San Francisco Area, etc.)
Regional: Specific region (Midwest, Southeast, etc.)
Europe: Europe is often negotiated as a neat little package that includes Great Britain, Spain, France, the Netherlands, Scandinavia, Germany, Italy.
By Country: Specific countries can be purchased, but if the exposure is large, such as Europe, it may be wiser to go with Global to make sure you are covered.

MARKET
This category also gives the artist an idea of the degree of exposure. Consumer advertising generally receives more exposure and at a premium cost. Trade is not as expensive, nor as far-reaching in exposure. Editorial is relatively cheap.
Consumer: Markets to “people who buy things”; it is purely commercial (sells things) in nature and the artist want 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: Informational in nature, not commercial. Magazine layouts and textbooks fall into this category.

USAGE REALM
This category further defines how the images will be used. These categories are then segmented even further by defining specific mediums for each.
Advertising: A medium that sells something, like an ad or an outdoor board.
Promotional: A medium that promotes something, like a poster for an event like a concert.
Public Relations: Similar to Promotional, but more awareness-driven and less commercial.
Corporate: Annual reports or internal materials like sales kits.
Editorial: Again, informational in nature, not commercial. May accompany an article or be included in a textbook.

MEDIA

Media usage describes where an image will be seen and can be defined as precisely as you choose. As with photography, when negotiating with talent the specific media included will directly affect your price. Broadcast use is seldom needed, but can be purchased if necessary. Remember that sometimes being TOO specific may come back to bite you later.
Any And All Media: Covers EVERYTHING: all print, OOH, POS, Electronic and Broadcast. “Any” and “All” are somewhat redundant, but it drives home the idea that everything is covered.
All Print: Generally, anything printed onto paper that you can hold in your hand: newspaper, magazine, collateral, direct mail. You may expand your negotiations to include POS or OOH by adding it specifically, otherwise they are generally not included under this category. Exceptions may include GO cards or similar limited exposure items.
Newspaper: Use this category in conjunction with Geographic Region. Size also plays a role.
Magazine: Use this category in conjunction with Market 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.
Direct Mail: Pieces that are mailed to people. Quantity of pieces and Geographic Region affects pricing. Where the image is seen also makes a difference, whether it’s on the cover, envelope, etc.
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, hang tags.
Out-of-Home (OOH) or Outdoor: Virtually anything seen outside of your home: outdoor boards, bus sides, trans stops, rail cards, GO cards.
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, C Ds for distribution, Asset Management System, screensaver. Unless rights are specifically purchased, images cannot be resold.
Internet: Global internet use. Where it will be seen (home page or inside page)may affect pricing. Sometimes numbers of hits makes a difference also.
Miscellaneous: Things like Ad Planners must be negotiated apart from the other media because of the potential for wide-spread, undetermined use.

BODY OF WORKS
This means all of the images shot for the project, not just the selected image or images. Some photographers will automatically sell you the rights to the entire body of works, but most will sell you the rights to only the selects. You will need to clarify at the beginning of the negotiation because usage will default to the selected images only if not specified. You will also want to include a clause that outtakes may not be sold as stock until the rights on the selects expire.

REUSE
It is in your best interest to include verbiage in your initial use statement that covers future reuse. Legally, unless otherwise indicated, an artist can sell an image to another client at any time, with an increased risk after the original use expires. Because the exact date of first use may not be known at the time rights are purchased, it follows that the date of expiration may not be exact. With the proper verbiage, you can create a checks-and-balance system to at least have an opportunity to decide if you want to purchase reuse before your client sees it in another ad. I recommend stating that your “client reserves first option of reuse upon expiration of current rights.” If you and your client do not renew your option, then there is a possibility that the image will be purchased by someone else.

MISCELLANEOUS
You will want to include the right to use images for your agency to use in self-promotion. Those rights are technically not granted past the original usage period without express authorization. Although usually not a problem, it doesn’t hurt to have it stated officially. To get the maximum amount of usage time of an image, include the phrase “from date of first use” or “effective date of first use.” That way, if an image is not used for several months, your usage won’t begin until then. Otherwise, it may be a point of contention a year from the shoot date. This is especially important with talent. If the photographer is coordinating the talent, do not automatically assume that the usage for the talent matches the usage you are contracting with the photographer. You must clarify talent usage at the estimate stage.

EXAMPLES OF USAGE VERBIAGE
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 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. Image will 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, may not be sold as stock until all usage expires. Client reserves first option of reuse upon expiration of current rights. Artist retains self-promotion rights forever, as
does the agency. Total buyout of rights, usage and copyright. Artist retains self-promotion rights. {The word ‘buyout’ by itself is meaningless and will not hold up in court}

This information was provided to me by Former Art Buyers and current photography consultants Amanda Sosa Stone and Suzanne Sease. Usage terms guide created by Kat Dalager.

There Are 47 Comments On This Article.

  1. Hi Rob – Thanks for posting this and other excerpts from photography consultants Amanda Sosa Stone and Suzanne Sease. The more information out there on the key elements of the professional side of the photography business, the better. Every little bit of information out there that assists in raising and/or maintaining awareness levels, helps. Thank you.

    Jono

  2. When dealing with smaller clients I always get the “what do you mean I don’t own the image” or “why am I paying more because I want to , you’re just taking a picture!”

    I have a response already prepared for these types of questions… but a link to a third party that has a detailed description of usage is a good thing since it shows you’re not just trying to blow smoke up their… well, this could be just that link.

    Thanks!

    • @Jeff Singer,

      Hmm, that cut out part of my post… it should read:
      “why am I paying more because I want to *insert use here*, you’re just taking a picture!”

    • @Jeff Singer,

      Great post, thanks very much to all involved.

      I get the same questions as Jeff Singer does from the smaller clients, and they just don’t understand usage for the most part.

      I would love to hear what your come back is to these folks?

      • @Eydis Einarsdottir,

        Clients with the money/exposure to warrant significant usage charges know what usage is.

        For these tiny clients who know nothing about licensing and copyright, I just assign a fairly comprehensive rights package included in the cost. These are almost always small, regional or local clients… I don’t have to worry about them blowing up into billion dollar corporations using the images for a song :)

        • @craig,

          That is what I do normally, but I generally try to educate these “little” clients of what usage is, especially since I always use the word in my contracts.

          But thanks for the heads up!

          • @Eydis Einarsdottir, When I first started off as an art buyer, I remember two comments. The first was from an account executive who couldn’t believe photographer’s fees. I compared the fees to his salary but with his salary, he got health insurance, a fully stocked office with the rent, phone, furnishings and all the office supplies he could wish for, the photographer had to pay for all that themselves- he got it. The second time was probably my favorite!!! The budget control manager couldn’t believe an estimate I presented. Her response was “This much for pictures” Which I quickly responded “Pictures are developed at Costco, Photographs are something you pay for” She had nothing more to say.

  3. Thanks for posting this Rob. It’s a great resource not only for photographers but those potential licensors who might be less familiar with industry terms.

  4. Why is there so much re-inventing the wheel on the last two ‘consultant’ posts?

    Below are two resources for much of this information. Both tend to uphold a standard of terms, invoice/estimate/licensing forms.

    I can’t imagine the two consultants don’t know of both of these resources.
    Why not present them to this forum?

    I really value Rob’s blog, the effort and information provided. But what
    “Photographer 1″ says in the previous post portrays the general mindset of many photographers today:

    “I don’t think photographers could ever pull off a Union type situation. Never in a million years.

    It is like trying to organize a million man march of independents. They are too much the loner mentality.

    Many can’t even follow loose guidelines for rates or usage.”

    Because of this seeming dissonance, it is really hard not to take much of the comments (and some of the content) here with a *pound* of salt. It often feels like a group of blind newbs, arms outstretched trying to describe an elephant.

    These resources are not dated, present decades of experience:
    (Why not use them?)

    http://blinkbid.com

    http://www.apanational.com/i4a/pages/index.cfm?pageid=3340

    APA Business Manual – Downloadable files

    Protecting Your Copyright
    * The Key To Copyright Protection
    * Mass Registration Solutions
    * Recommended Reading (links)

    Estimating Guide
    * The Licensing Business Model Why it’s important
    Licensing vs. Buyout How to defend your position
    The Art of the Estimate Increasing your chances
    Estimating Checklist Things to remember
    Writing the License Communicating more than price
    Billing Terminology and Structure
    * Work-For-Hire Saying “no” without burning the bridge.
    Business Forms
    Introduction
    Estimate/Invoice form, with Terms & Conditions
    Estimate/Invoice form, T&Cs, and Production Worksheets
    Job Change Order and Assignment Delivery Memo
    Stock Invoice w/ T&Cs, and Stock Delivery Memo
    Model Releases: Testing, Assignments, and Stock Updated 2008
    Property Release

    Digital
    Film or Digital?
    Digital Checklist
    * APAdigital A discussion group for digital transition

    Representation
    * Great Repspectations What to expect from a rep
    Rep Checklist: Defining The Relationship

    APA Professional Assistant Manual
    Introductory Overview And Job Description Updated 2008
    Effective Strategies To Get More Pro Assisting Work NEW 2008
    Assistant Invoice NEW 2008
    Assistant Job Confirmation Form NEW 2008
    Guidelines For Professional Assisting NEW 2008

    • @Bob,
      I thought it was interesting because it comes from the Agency side and is meant to educate AB’s on the terminology.

      To your point about the APA resources already existing. I couldn’t unlock the pdf to read about usage terms. I assume you have to be a member to see it.

      • @A Photo Editor,

        It’s nice to see the information provided by a print producer as an agency guide. Maybe I missed it, but how exactly is this “agency guide” used and distributed? Pardon my assumption about this forum being primarily used by image makers. I was not aware there are many ABs and PEs in the audience as well. I can see this may be a good guide to educate those assigning projects.

        Yes, it does look as though membership is required to unlock these forms. I haven’t been an APA member for years. What I’ve learned from APA, ASMP, AOP (Great Britain) EP has not changed significantly. Business is still business. Membership in one of these organizations is a fundamental cost of business as an image maker, just like a lens, insurance, or software.

        • @Bob,
          Yes, I don’t know why it’s not obvious that much of what is written would be directed at Photo Editors. I’ve never been a photographer and have no plans to become one.

    • @Bob, We are trying to add a service forum reaching out for tips from seasoned photographers, those just starting out, art buyers and producers and major reps. Sorry we didn’t add every aspect and link and we appreciate you added yours. That is what this is ALL about- we are all here to help. Not reinventing the wheel, just giving you an insight from others perspective. If you just don’t like us, please keep it to yourselves….or use your last name.

      • @Suzanne and Amanda,

        I appreciate the aspects you have contributed so far on these recent threads and those in the past. As I understand it, both of you are consultants for hire by image makers. If standardization is sought, why not got straight to the source? The language, terms, business models have been developed by photographers over many decades, possibly hundreds of cumulative years of experience. I’d bet both of you are well aware of these sources.

        While it is nice to get a third party opinion, including the perspective from former ABs, the clients and agencies are not the originators of these practices. They were developed by and for image makers to manage healthy businesses. It is not the role of the agency to define the image makers business or terms.

        With regard to your last line. I’m here for business information. I’m not here to represent my own business, nor to social network. Nothing about this is personal. I don’t know either of you. I look at facts. Those details I can’t determine as fact are analyzed and deconstructed to try to understand reason, motive, behavior. I try my best to align my beliefs with reason and fact, making changes when warranted. I’ve chosen to post anonymously based on observation of online communication. So often I see cognitive distortions, emotional reasoning, reaction to feedback, personalization, etc. Communication can get messy, -as has been said- posts on the internet are forever. Again, it’s up to *me* to decide what I’m comfortable posting (including identity). We all have the option to accept feedback or reject it based on our own criteria. I wish you the best.

  5. These terms can’t be reviewed and clarified enough. Thanks for reminding us of the APA resources as well. The PDFs seem to be password protected for members only, can’t blame them for that.

    I’m interested to discuss examples of contracts that are non-negotiable and effect a significant number of freelance photographers. Let’s start with the New York Times Freelancer contract. I’ve heard different interpretations of the contract, but essentially it seems that the NY Times not only shares copyright with the photographer but will re-use images as many times and in as many mediums in it’s ownership (the newspaper, it’s magazines, blogs and website) as it wants, paying the same $200/per assignment with no expenses or assistants regardless of use of one or all images in a given shoot.

    I’m quite aware of the NYTimes position on this. Is this interpretation of the contract bulletproof? Are there current legal challenges being posed to the contract now that any one is aware of?

    Suzanne and Ann, how do you work with the NY Times and your photographers? Do you see shooting for Kathy Ryan and the magazine worth the small compensation and copyright terms? How do you advise freelance photographers who can’t negotiate, and a big part of the compensation is the ‘value of being printed in the NY Times’?

    I see a good argument for unions here. Individual bartering is not possible with an institution like the NY Times. Unless one has achieved a certain level of success/fame, the contract ‘as-is’ is a precursor to work. Therefore, negotiating in this scenario, is a highly individualistic solution that is unavailable to the majority and does nothing to protect the value of the field as a whole.

    Looking forward to everyone’s thoughts.

    Sophia
    http://www.sophiawallace.com

    • @Sophia Wallace,

      Access to details like the ones you have suggested bring me to this blog. This is important information.

      Keep in mind many of the clients and media companies an image maker will work with are large powerful organizations like the NYT.

      In advertising the larger agencies are mostly held by one of six mega holding companies:

      -WPP Group
      – Omnicom
      – Interpublic
      – Publicis
      – Dentsu
      – Havas

  6. Thanks Rob,
    It would be wise for any professional commercial photographer to learn to use these standardized terms. When dealing with an ad agency or a marketing company, it is another layer of professionalism that will help a photographer in the long run. Unprofessional business habits with vague terminology can lead to disputes with contracts and unnecessary time loss and legal expenses for both parties.

    Organizations like APA and ASMP do provide resources for photographers that can help with creating bids that use these standardized legal terms. And sponsors of these organization including BlinkBid ( BlinkBid.com ), FotoQuote ( CradocFotoSoftware.com ), and PLUS ( UsePlus.org ) have great products that simplify and aid your business workflow.

    And for those that don’t know, Amanda and Suzanne have a great book that can help you and it’s less than $20 at Amazon.
    While you’re there check out John Harrington’s “Best Business Practices for Photographers”. Another good read that can put and keep money in your pocket.

    Remember: Photography is a business and it should be treated as such.

    Lenn Long
    APA Charlotte

  7. A note on “collateral.”

    Be as SPECIFIC as you can as that term, if used standalone in a contract, can be creatively exploited to the detriment of the photographer.

    If the client has specific collateral pieces in mind, list them as specifically as possible in the estimate so there is no confusion or vagueness. I would avoid terminology like “anything in print that ‘goes along with’ the campaign.” A less-than-honorable client can interpret that to mean just about whatever they want and there is scant precedent anywhere describing what is and is not considered “collateral.” Getty’s definition is probably the most thought out.

    Bottom line, be specific. It’s better for everyone.

    Trust me.

    • @William Anthony, yes, very good point about collateral. When I help photographers with their estimates, I like to spell out the collateral uses. Another REALLY important term is “NO THIRD PARTIES RIGHTS GRANTED”

  8. Great post Rob, they just keep getting better.

    I have a particular problem in this regard that I have never comfortably resolved. I do a fair amount of Hotel/Resort work and the standard of their industry is in total conflict with ours – and probably the law too, come to think of it. Hospitalty clients hand out images left right and center to any business partner or media that asks for them and they pretty much lose all control of them after that point. In addition, any media credit is to the hotel and not the photographer – just think of any editorial piece that you have seen, the shot is always credited as “courtesy of xxx Resorts” etc. The shooter gets no mention whatsoever.

    Attempting to educate them is a waste, it’s the way they all work and always have. If you don’t like it, don’t work for them, it’s that simple. As they point out, many others are willing to take your place on these terms.

    I see no point in trying to beat my head against a wall because I’m not going to change an entire industry. I’ve basically handled the issue by not handling it and just building this knowledge into the price up front. It may be the chicken way out, but I do like to work and eat.

    I’m not really looking for a way to make more money, I’m happy with my fees, but I would like some control and a credit for my life’s legacy.

    • @Andy Ptak,

      It’s the same way with entertainment and music promotions. Press photos go out to anyone who asks. You get credit if you’re lucky. You just build this into your fee, its how the industry works. But honestly, these photos are only up-to-date for a couple of years before they need to be redone, so it’s not like you’re losing major money.

      • @craig, I’m not crabbing about losing any money, I’m probably one of the few people who are quite satisfied with the living I make.

        As far as I’m concerned it’s the cost of doing business in this field. Wouldn’t mind a credit when media pick up the shot though -fat chance!

        I was just interested in what “Rights Nazis” would do in this situation. No slur intended, but if Seinfeld can have a Soup Nazi, I can have a usage and rights one. I’m not out to change the world on this, but I do wonder what others do.

    • @Andy Ptak, If it wasn’t the money, would you have done the work? Personally, I don’t get into situations where I am doing a shoot just for the money. I need to be interested in the project, and comfortable with the terms.

      Maybe that doesn’t directly answer your question about Rights issues. Quite simply, if I don’t like the terms, then I will turn down the project. I have to be fair to my clients, and myself.

      • @Gordon Moat, That’s my point Gordon, I couldn’t agree with you more. But I think that I don’t care enough about Rights issues – in this genre anyway, puts me in the minority and I’m interested to know if others are in the same situation and what they do about it. Other types of work are a different story. I’ll do the job if I like it and happily ignore the whole Rights issue if that’s part of the package.

        I’ve turned down more than my fair share of jobs too, but rarely because of the project itself, let’s face it, there’s a lot of uninteresting work out there. I don’t turn them down because of Rights issues either. I turn them down when the client appears to be an a**hole. Not enough money in the world for that.

  9. Crikey!

    WHY OH WHY re-invent the wheel? There is already a cross-industry STANDARD for defining every conceivable usage term and it’s called the Picture Licensing Universal System (PLUS). It’s been around for several years, was approved by every photo trade organization of note including photo buyers, museums, and so on. For me, I’ve been using it since it came out. It’s not clear to me why someone didn’t bother to mention PLUS in the above post at all, and thanks to Lenn for referencing it in his comment!

    Go look into PLUS at http://www.UsePLUS.org

    — John Harrington

  10. @John Harrington, Hello John. I agree that PLUS is a great resource and is certainly the only well thought out licensing lexicon there is today. I was one of the initial reviewers of the first version. I was very impressed by it. I had to read and consider the adequacy of every included term, and it was amazingly well done in its first drafts and better in its final drafts.

    However, PLUS is only an effective tool when employed by a knowledgeable person who takes the time to think through the licensing process. I do not think that is even 50% of the photographers shooting today. The value of standardized forms is that they fill a gap that all the education in the world will not fill. That gap is the one that straddles laziness on one side and lack of comprehension on the other. You can educate many, but you have to train others. Plus is an educated user tool. Unfortunately, and I am certain you know it as well as I do, there a lot of photographers who just don’t get it or care to.

    Hope all is well with you and great book.

  11. Rod Alexander

    Thank you so kindly for this abundance of information, I will certainly refer to it many times in the near future. God bless you and keep up the fascinating work.

  12. anna domett

    it’s a great article!
    does anyone know where i could find a kind of terms and Conditions for a commercial usage of an image?

    any ideas?

    i would be grateful!