Is It Legal? Oral Understandings Versus Written Usage Agreements

By Nancy E. Wolff

Q: “I was hired by a large, online retail Web site to shoot one of its look books. I’ve worked with this company many times and have never signed anything or agreed on specific usage details with the client. They paid me to shoot the book, I got the check—all was good. A couple of months passed, when I noticed one of my photos on a major billboard in the middle of Sunset Boulevard. It was huge and looked like a very expensive ad. Is this considered kosher in the photography business? I couldn’t help but feel that I should be getting paid for the thousands of hits their Web site will receive based on my picture. Am I wrong?”

—Gregory Minasian, via e-mail

A: When you deliver photographs to a client without any written contract, the scope of the client’s permitted use is based on an oral understanding. As a freelancer, and not an employee, you own the copyright in the work and can only transfer exclusive rights to a client in a written document signed by you.

As a result, your client has only nonexclusive usage rights based snapshots on your oral understanding. If the understanding between you and the client is for you to create photographs just for the look books, the additional use on the billboard would be outside the oral usage agreement and would be an infringement of your copyright. However, your client might argue that you gave them broader rights than what you understood this oral agreement to be. There is a saying in the legal profession that an oral contract is not worth the paper it is written on!

Sometimes clients do not understand that when they pay for a photo shoot, they acquire only limited usage rights to the photographs and not full ownership of the content created. You may have some client educating to do with respect to copyright and usage. This is why I always recommend that photographers provide written terms when they deliver images to a client, even digitally. You should prepare an invoice/license agreement that has clear usage terms which includes, among other relevant factors, the type of use, the duration of use, whether usage is print and/or electronic and geographic limitation (if any). The invoice should have language stating that any other usage besides what is noted in the written document must be negotiated and that you reserve all rights that are not specifically granted. One valuable resource for sample business forms and detailed tutorials on their use is the ASMP Web site; look under the Business Resources link.

In your particular case, you need to go back to the client and explain that the use of your images in a billboard is beyond the rights granted in the look book and that you need additional compensation. Typically that conversation would involve negotiating a set fee for billboard rights and will not be calculated by the number of times someone accessed the company’s Web site as a result of seeing the billboard. One other important detail to note: Registering your images with the Copyright Office before client delivery is highly recommended, as you could not bring a claim for copyright infringement without this registration in place.

Nancy E. Wolff is a partner at Cowan, DeBaets, Abrahams & Sheppard, LLP. Her practice focuses on intellectual property and digital media law.

Got a legal question? E-mail us at jwaterman@pdnonline.com.



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