Licensing your photos: assignment, exclusive vs non-exclusive, scope

Two things often get confused when a photographer hands a photo to a buyer: licence and assignment. They produce very different outcomes.

Selling a print or file is not selling the copyright

Copyright in a photograph is separate from the physical print or the digital file. Section 196(3) of the Copyright Act 1968 (Cth) requires an assignment of copyright to be in writing signed by the assignor. Handing over a USB stick, or even an invoice that says 'image included', does not transfer copyright unless the writing requirement is satisfied.

Assignment

Assignment under section 196 of the Act transfers the copyright (or part of it) to the assignee, who becomes the new owner. After assignment, the original photographer no longer controls how the image is used; they may still hold moral rights (see Who owns a photograph) unless those have been waived. Assignment is permanent unless the contract reserves a right to revert.

Licence

A licence is permission to do something that would otherwise infringe copyright. The photographer keeps ownership. The scope of the licence depends entirely on what the parties have agreed. Section 196(4) recognises that licences can be exclusive or non-exclusive.

Exclusive licence

An exclusive licence gives the licensee the right to use the photo to the exclusion of everyone, including the licensor. It must be in writing and signed by the copyright owner to give the licensee standing to sue (section 119).

Non-exclusive licence

A non-exclusive licence allows the licensor to grant the same permission to others. It does not have to be in writing, though for practical reasons it should be.

Scope: the three terms every licence needs

• Use: what the image can be used for (editorial, advertising, packaging, web banner, print run).
• Territory: where it can be used (one country, English-speaking territories, worldwide).
• Term: how long the licence runs (one campaign, twelve months, in perpetuity).

Use beyond the agreed scope is infringement under section 36 of the Act. Royalty-free and rights-managed are commercial labels that describe variations on these three terms; they are not legal categories.

Editorial vs commercial

An 'editorial' licence is a commercial label, not a legal category. It typically restricts the licensee to news, education or illustration. Commercial use means promoting a product or service. Section 18 of the Australian Consumer Law catches use of identifiable people in advertising without consent (see Photographing people), so editorial licences for images of people are common to manage that exposure.