Usage Terminology in the Real World
by Leslie Burns, Burns Autoparts-Artists' Representative

Defining usage can be a scary prospect. We're not lawyers, we're creative professionals, and sometimes the required terminology can be a bit daunting. So, to help cut through some of the vocabulary fog, here is a quick primer on some common usage/licensing terms.

Basic terminology:

"Buyout" or "All Rights"
Legally, these terms have no meaning. The client can mean copyright transfer, unlimited time for a specific use, or unlimited use for a specific geographical region or media. Find out what the client really wants and teach them not to use these terms.

Exclusivity
If you grant exclusivity, you need to be specific. It means that you will not relicense the image(s) dependant on the type of exclusivity granted.

Exclusive for X year(s)
Will not relicense the image to anyone for any use for that time; Industry Exclusive÷will not relicense the image to any client in the same industry (i.e., competitors); Consumer Print Advertising Exclusive÷will not relicense the image for Consumer Print advertising, but you may to (for example) a corporation who wants to use it in their annual report.

Non-exclusive
You can relicense the image without restriction. The client should be aware that these images could appear anywhere, used by any other client.

One-time Rights
Just what it sounds like÷the client gets to use the image once. Be specific in the description: One-time print ad usage for placement in the Columbus Dispatch to run no later than six months from date of invoice.

First Use
More often this will be editorial usage; the client gets to use the image first, before anyone else. Define a time limit for this, like 90-day First Use Rights granted from date of invoice. If they don't use it by then, you're free to relicense to someone else.

Unlimited Use
Just what it appears to be? you grant to the client the rights to reproduce the image in whatever medium (or media) they choose, as many times as they choose, etc. Put a time limit on this (i.e., Unlimited Use for One Year), and/or restrict the scope ("local only" or "in unpaid placement," etc.).

Unlimited Use for Unlimited Time (or, In Perpetuity)
Useful if the client insists on a "buyout." The client can use the image however they choose, forever (and, if Exclusivity is granted as well, then it's even more like a "buyout"). However, you retain the copyright and therefore the client CANNOT resell or relicense the image to any third party. NOTE: This is extremely liberal usage and should be priced MUCH higher than restricted use, and also higher than Unlimited Use with a time limit.

Defining Markets:

Consumer Advertising
Is the target audience of whatever media the image will appear in the Average Joe? Soccer Moms? Working women in general? Kids ages 8-12? Then it's Consumer Advertising. It is (generally speaking!) a larger target, the media buys are more expensive, and your image is more important as the potential results of the advertising are greater than other targets.

Trade Advertising
Are the ads going to run in trade-specific publications, like PDN or Today's Realtor? Will the image not be reproduced for the general consumer market? Then it's Trade Advertising and (again, generally speaking) not of as high a value as Consumer Advertising. However, find out which pubs the ads will be in as some trade pubs have higher ad rates than some consumer pubs-- Women's Wear Daily is considered a trade pub, but it's a borderline case and is darned expensive to advertise in! The Wall Street Journal used to be considered Trade, but now it should be considered Consumer.

Corporate Brochures, Annual Reports, in-house pubs (both internal and external distribution)
Anything produced expressly for a single entity, which does not fall into the Advertising category, may land here. If you license an image for Corporate use, even if Exclusive Corporate usage, it can be relicensed for advertising or editorial use. NOTE: Point of Purchase/Sale is Advertising. Consumer Advertising.

Editorial Image
will run in a publication as a part of the editorial content. Magazines, books, online mags, zines, etc. Make sure it really is Editorial and not Advertorial (see below).

Advertorial
It looks like an article, but really it's advertising. Often marked by "special section" in a pub. Clients will try to say that it's editorial, but it's not. Call it advertising and charge appropriately.

A Note on New Media
When granting different forms of electronic use, be specific. Do not say "electronic use" because it can mean anything-including video and TV! Spell it out and include the time limitations, number of the run (in the case of CD-ROMs or DVDs), and/or "insertions" in the case of advertising (like banner ads): Non-exclusive consumer advertising rights granted to XYZ Agency for ABC Corp for web banner ads limited to X (number) insertions. Period of use is one-year.

When you're creating your paperwork for any project, if you do not provided a complete, detailed description of the images produced somewhere else on your estimate and invoice, include that description in your Rights Granted (e.g., one color image of a Chihuahua drinking out of a toilet-). Here's an example of the way your Rights Granted may look:

Exclusive consumer advertising usage to XYZ Agency for ABC Corp in print ads, limited to distribution in the Columbus, Ohio metropolitan region. Period of use is six months from date of first insertion, being no later than six months from date of invoice. Images may also appear in four-color brochure, limited to a total print run of 10,000. Image(s) are copyrighted by Photographer, Inc. All other rights reserved by Photographer. The great thing about all of these terms (and all the others) is that they can be combined to make usage as specific or as general as both you and your client need them to be. This flexibility works for both you and your client in that you can negotiate terms and price with specificity. The result is that your client gets exactly what they need without paying for what they don't, and you look golden to your client for not gouging them for usage they don't need. At the same time, you aren't sacrificing price and value. It's a win-win situation, and clients should be educated to this fact.

When to "Ignore" Usage
This is a bit of a touchy subject. Yes, we should all base our pricing on usage. Absolutely. Always. Except when it's in our best interest not to.

What that means is that there will be times when granting unlimited usage, but not really charging for it, just makes better business sense. These situations are much more rare than they might first appear and you need to be sure before you agree to do this.

Imagine a small corporate client which produces widgets calls you for an estimate. They want you to shoot their product, on white, for their sales sheet, but they might want to use it on their website too, and maybe in a brochure later, and, well, they just don't know where. It's a trademarked product, and not one which is going to be a Nike shoe or anything, and it surely isn't going to be signature work for you. The client doesn't want to have to deal with usage, but they are willing to pay a decent rate for the shoot.

If you feel that you're never going to be able to resell that image, that it will have no real future value to you, then grant them liberal usage (unlimited, whatever) and take the project.

This is not a client which needs to be fully educated (though it wouldn't hurt to mention the way the business usually works, casually, to let them know that what you are doing is a "nice" thing for them). However, you will be building a relationship so it's a good idea to, over time, let them know how things work in your business (these are, after all, mostly business people you'll be working with in these situations). The client will respect you for it.

Again, don't "give it away" you know how much money you need to make to stay in business÷but there's no reason to fight for usage on something which isn't going to be any more lucrative than the original shoot in the first place.

One thing though, don't sign over the copyright. There is always the tiniest chance that some major corporation will buy the company and change that widget into the next consumer product of the year. You don't want to lose your rights to those images. By holding the copyright that major corporation will have to come back to you to license the images. The original client cannot legally transfer any rights to their buyer, so you're set.

In essence, when considering granting unlimited usage to a client, weigh the potential future value of the images you're going to produce against what you will make for this shoot. If you're sure, really sure, that you're not going to make anything more off the images, and the client just will not deal with usage, and you're comfortable with what they are willing to pay, then make the deal.

Copyright 2001 Leslie Burns
This article first appeared in the Spring 2001 issue of the ASMP Ohio Valley Chapter's newsletter, image.

Related Web Sites of Interest:
www.asmpohiovalley.org local ASMP chapter site
www.pdnonline.com PDN's site
www.editorialphoto.com AKA EP; a group discussion board dedicated to improving the conditions of the editorial photographer. Free (you can contribute), and worth it's weight in gold if you do any editorial work.
www.apanational.org Advertising Photographers of America's site. Go there if for no other reason than to download the 1999 Pricing Survey.
www.apanational.org/apanet/index.html AKA APAnet; a newer group discussion board dedicated to Advertising photographers. Free, no membership required, and a great source of info for advertising shooters.

References and for more info:
Pricing Photography; 2nd ed. 1997, Heron & MacTavish. $24.95 ISBN#1-880559-68-4