First things first; I’m not a lawyer or an expert in contract law. This article is based on my research alone and the details herein should not be taken as fact. You should always consult your own qualified legal expert.
Like all photographers or videographers, drone operators need to protect their work.
The good news is that, from the moment you press the button on your controller app to take a photo or record a video, you hold the exclusive copyright to your images.
However, you need to be able to grant a licence to your client so that they can use the images or video you’ve produced for them, for their intended purpose.
Drone operator fees cover our time, our overhead, our experience and even our creativity. Licensing fees, on the other hand, cover where and how our images can be used and in what way.
What type of photography are you creating?
COMMERCIAL photography is used to sell or promote a product, service, or idea. Advertising, marketing, and promotional activities all fall into this category.
EDITORIAL photography is used primarily for journalistic or educational purposes. Images featuring people and things not licensed for commercial use can be used in newspapers, magazines (print and online), as well as text books and educational blogs.
RETAIL photography is generally commissioned or purchased for the client’s own personal use (e.g. wedding photography, event photography, etc.). Licensing issues don’t arise as often in this category. While the photographer retains the copyright, the client’s fee may, for example, include a grant of reproduction rights.
The important thing here is that the difference is not in the content of the photos or how they were shot, but in their end use.
What’s a licence and why’s it important
A licence is a contract in which the photographer grants specific rights to the client who wants to use the image. The client can only use the image for the purposes or scope laid out in the agreement. That’s it – simple!
Licensing your images or videos properly is critically important to protect your copyright and your income.
LICENSOR – The photographer or copyright holder who is granting usage rights to another person or entity.
LICENSEE – The person or entity to whom the license is granted.
CREATIVE FEE – The creative fee is charged by you, the photographer, for you efforts to bring a project to a successful completion. In addition to your time spent, the creative fee may be calculated to include factors like flight hazard avoidance, your expertise, your experience, the complexity of creating the shot, or anything that contributes to the overall creative effort.
EXCLUSIVE LICENSE – When you grant an exclusive license it limits not only the client in their use of the licensed image(s), but also the you in your ability to license the work to other parties. An exclusive licence can be very broad or very specific and might, for example, grant the licensee exclusive rights to use a photo singly, or in any combination of a specified media, industry, territory, language, time period, product, and/or any other specific right negotiated between you and licensee.
NON-EXCLUSIVE LICENSE – You can grant the same or similar rights to multiple licensees. Unless otherwise negotiated, licences are non-exclusive.
UNLIMITED USE – This grants the client rights that permits them to use the photo(s) across all media types and parameters (e.g. territory, duration, etc.). You clients should expect to have to pay a premium for this.
LICENSING FEE – This is the price charged you to the licensee in exchange for a grant of rights permitting the use of one or more images in a manner prescribed in the licence. The fee will be based on factors like circulation, size of reproduction and specific image qualities.
Agreeing the terms of the licence
One of the first things you’ll do for a client is send them a quote which should include a description of the licence you’ll be granting for any media you produce. This is where negotiations typically begin.
It’ll be no surprise that the client may be looking for more of a rights grant than you’re initially planning to give. It’s also possible, at this early stage, that they may not yet have a clear idea of how they plan on using the work.
There are three things you should aim to get across in your initial licence description:
- First, you need to be clear that the license will be a grant of agreed-upon usage and scope. Only specified use will be permitted
- Second, the description must seek to ensure that the client understands what they can and cannot do with the photos
- Third, it will protect your photos from unlicensed usage
The most important piece of advice is that you must be clear and concise. It’s a good idea to list the rights granted, rather than writing them out in paragraph form.
The licence itself
While it’s crucial to be clear and concise, it’s just as important to ensure you don’t forget anything. A good licence description will contain all of the following:
PARTIES – Remember that a licence is a contract between you and your client. The contract will be invalid if it doesn’t properly identify the parties. If you’re a limited company or doing business under a name other than your own, make sure to use your business name.
PERMISSIONS – The licence grants permission to the client for specified use. Those permissions need to be listed. They are generally broken down by:
- Category/Type (e.g. trade magazine cover)
- Distribution Format (printed, electronic download, etc.)
- Placement specifies the locations or positions where the work can appear in specified media and how many times. For example, single placement front cover
- Other specific permissions can include negotiated terms such as size, quantity, duration, region, language, and exclusivity
CONSTRAINTS – Anything that can appear as a permission can also be used as a constraint. Typically, constraint will be around display or use duration or image size. You could for example grant permission to use the image from one specific date to another and once the license expires, the client must pay an additional licensing fee in order to keep using it.
REQUIREMENTS – This can cover things which don’t fall into either permissions or constraints; for example, you might require the client to add a credit line below the photo.
The Base Usage Rate (BUR) is a fixed-figure sum set by the photographer or their representative and used to calculate the fees for any additional use of the commissioned work, over and above the original rights granted with payment of the original invoice total. The BUR should be clearly stated on a photographer’s original estimate or quotation and is the lynchpin on which the Usage Calculator operates. A single BUR may be set for a whole commission or individually for separate images
TERMS & CONDITIONS – Typically, this will include your payment terms and how payment’s to be mad etc.
IMAGE INFORMATION – Let’s assume that the license only allows for the use of two images but you delivered five so the client could select the two they want to use. What happens if they assume that they can use all five, as long as they only use two at a time? You’ll have to make sure that you not only specify the quantity of images, but also which particular images.
A typical licence
In the UK, your fee should normally include the first use of the images, but the duration, media and territory are open to negotiation within this fee. Factors such as your experience, hazard proximity etc. may affect your negotiated day rate.
The majority of drone operators will include some usage in their fee, others will charge a set day rate and charge usage on top.
The originally negotiated fee would normally include one of the following:
- 1 Year UK or any single country – any two media (3rd media may be included depending on its proportion of the media spend), or;
- 2 Years UK or any single country – any one media.
The licence begins on first use/insertion and first use/insertion should be expected within six months of the delivery of the finished job to the agency/client. It’s suggested that work should be licensed for a minimum period of six months at a negotiated day-rate.
Standard practice will be to give the client exclusivity for the period of time, in the specific territories agreed and included in the fee.
Clients and advertising agencies are likely to be concerned that the images they commission and pay for shouldn’t fall into the hands of competitors or become associated with other products after the initial licence period has finished. To prevent this, you should avoid licensing the images further, for example through a stock photo library, without the client’s consent, for up to four years after the end of the licence (unless otherwise agreed).
Once the exclusivity period has expired, the client should be offered first option to extend the exclusivity clause at a negotiated rate.
A final few words
You should be able to confidently explain to your client why the licence contains what it does. The client may or may not have dealt with other photographers or drone operators before you, and therefore may or may not know what to expect.
If you can’t sound sure of yourself, the client is not going to have confidence in your professionalism. They’ll be going elsewhere. You have to know not only what each and every term in the contract means, but why it’s there. You’re not only selling your drone services, but yourself as well.