The importance of licensing to creators

PHOTOGRAPHERS asked for a briefing, addressed to picture editors, on what licences mean. Freelance Organiser John Toner obliges.

According to the Government, "the purpose of copyright is to allow creators to gain economic rewards for their efforts and so encourage future creativity and the development of new material which benefits us all." (www.intellectual-property.gov.uk)

The copyright in a work is generated at the moment it is created - and it belongs automatically to the creator. To dispel an urban myth - there is no such thing as an image that has no copyright attached to it. Someone, somewhere will own the copyright (unless the photographer or illustrator has been dead for 70 years). Any reproduction of the image without permission is an illegal act under the 1988 Copyright, Designs and Patents Act.

When you decide to commission a creator - and writers, photographers and designers are very definitely creators - one of their major considerations will be the protection of the intellectual property rights that are attached to the work from the moment it is created.

There are two options: the creator can either sell the copyright to you, the client, or you can agree to a licence for the use of the work.

If they are professionals, creators will try to resist transferring copyright to a client, because from that point onwards he/she will cease to have any control over the work and will no longer derive any income from it. If a photographer, for instance, unhesitatingly agrees to give you copyright you should ask yourself just how professional this person is and what standard of work you are commissioning.

As Oscar Wilde almost said: "A creator who would sell you his copyright would sell you anything."

Some people will argue that copyright is for sale provided the price is right. There are two responses to this: a) creators do not want to be parted from their creations on a point of principle and b) the price is never right.

A licence deals with three areas: time, territory and medium.

The narrowest licence would be "single use". This means you would pay a one-off fee to use the work once - in a magazine, or in a leaflet, for instance. Such a limited use should be reflected in the fee. The benefit to you, the client, is that if you wish to make only one use of the work then you pay accordingly. Why pay more for uses that you do not require?

The next step up would be an exclusive single use licence, often referred to as First British Serial Rights when it relates to newspapers and magazines.

By agreeing to such a licence, the creator would be giving up the right to license the use of the work to anyone else until it had appeared in your publication. The creator will want to charge more for exclusive use to compensate for the denial of opportunities such a licence entails.

A licence governed by a time-limit could be "use for six months/one year". A licence where the territory is the prime factor could be "use only in the UK/Europe". A licence restricted to a medium could be "use only in the print version of the Guardian" or "use only on the T&G website".

Combining the above, you could, for instance, have a licence granting "use in the Guardian print version for one year only". A more extended licence could be "use by the Guardian in any medium for five years".

Clearly, you should expect to pay the creator more for the latter.

If you wish a very extensive licence that need not be a problem. Remember, creators are producing work to earn a living. They don't want their words or images gathering dust - they want to license it in return for a reasonable fee. The more extensive the licence, the more extensive the fee should be.

Instead of looking upon a licence as a difficulty, regard it as an opportunity to discuss with the creator something that is tailor-made to your requirements. This is the best way of ensuring value for money, and a professional will always have the client's best interests at heart.

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