In part 4 of this series, I will walk you through the key (IMO) parts of my own invoice/license agreement: I have my full license agreement (“Terms & Conditions”) printed on the back of my invoice. On the front (page 1) of that document, I detail the specifics of the job/engagement and line-item the cost. I also will stipulate the use terms there, e.g.:
“USE: Exclusive license; Derivative work allowed; Print publications; Attribution required; Electronic Use: Web site advertising. PERIOD OF USE FROM 05/05/2014 TERMINATING 11/04/2014”
“TERMS: Full payment is due upon receipt of this invoice. Final billing reflects actual, not estimated expenses, plus applicable taxes. All fees and charges in this invoice are for the service(s) and/or licensing described above. Fees for licensing of additional available rights will be quoted upon request. Interest at the rate of 1.5% per month shall be due on all sums not paid within 30 days of this invoice. Please make checks payable to ‘Luxludus Media’”
At the bottom of page 1, I have the following text:
“RIGHTS LICENSED ONLY UPON FULL PAYMENT OF TOTAL BILLING AND SUBJECT TO TERMS AND CONDITIONS ON REVERSE”
Page 2 (backside) of my invoice then starts:
“THE RIGHT TO REPRODUCE OR USE ANY IMAGE IS SUBJECT TO EACH AND EVERY OF THE FOLLOWING TERMS AND CONDITIONS”
Let’s stop here and look at what we have so far. The USE section above clearly defines what “use” of my copyrighted material the client is buying. It also stipulates the timeframe these use rights are being granted for (in the example above essentially six months, starting 05 May 2014.) The more specific this section, the better!
Next section briefly describes the payment conditions, and sets forth how non-payment will accrue interest. Keep in mind, you can “generously” wave the interest if needed…
The final section at the bottom of page 1 is important: It essentially puts the client on notice that the use rights are only bestowed (according to the agreed upon terms above on page 1) once full payment has been received, and that said use rights are subject to the “Terms & Conditions” on the reverse side (page 2). This ensures that the client cannot claim ‘ignorance’ of said terms in the future…
Now on to page 2 – I will only discuss the most important sections here, but I am attaching a full sample invoice for everyone to see what it actually looks like in its entirety.
“1. DEFINITIONS: This Agreement is by and between Alain Zarinelli/Luxludus Media (“Licensor”) and the “Client” named on the front of this Agreement. “Image(s)” means the visual and/or other forms of film, prints, slides, chromes, and any other visual materials in any format including digital information supplied by Licensor to Client. Licensor is the sole creator of the Image(s). “Service(s)” means the photography and/or related digital or other related services described on the front of this Agreement that Client is specifically commissioning Licensor to perform pursuant to this Agreement. “Transmit” or “Transmission” means distribution by any device or process whereby an Image or copy of same, is fixed beyond the place from which it was sent. “Copyright Management Information” means the name and other identifying information of Licensor, terms and conditions for uses of the Images, and such other information that Licensor may prescribe."
This first section just makes sure both the client and the photographer are “in sync” as to what the various terms used in the agreement mean.
“5. CLIENT APPROVAL: Client is responsible or having its authorized representative present during all “shooting” and other appropriate phases of the Service(s) to approve Licensor’s interpretation of the Service(s). If no representative is present, Licensor’s interpretation shall be deemed as “accepted”. Client shall be bound by all approvals and job changes made by Client’s representatives.”
This section ensures that there will be no dispute later on about what services and work products have been delivered, and how.
“8. LIMITATION OF LIABILITY AND INDEMNITY: Even if Client’s exclusive remedy fails of its essential purpose, Licensor’s entire liability shall in no event exceed the license fee paid to Licensor. UNDER NO CIRCUMSTANCES SHALL LICENSOR BE LIABLE FOR GENERAL, CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES ARISING FROM THIS AGREEMENT, THE SERVICE(S), THE IMAGE(S) OR ANY ACTS OR OMISSIONS OF LICENSOR. Client shall indemnify, defend and hold Licensor and Licensor’s representatives harmless from any and all claims, liabilities, damages, and expenses of any nature whatsoever, including actual attorneys’ fees, costs of investigation, court costs and any other expenses or costs arising from or relating to Client’s direct or indirect use of the Image(s) or in connection with Licensor’s reliance on any representations, instructions, information, or materials provided or approved by Client.”
This is a most important section! Make sure you limit your liability…
“9. RIGHTS LICENSED: The licensed rights are transferred only upon: (a) Client’s acceptance of all terms contained in this Agreement, (b) Licensor’s receipt of full payment, and (c) the use of proper copyright notice and other Copyright Management Information requested or used by Licensor in connection with the Image(s). Licensor is willing to license the Image(s) to Client only upon the condition that Client accepts all of the terms of this Agreement. Unless otherwise specifically stated on the front of this Agreement, all licenses are non-exclusive, the duration of any license is one year from the date of Licensor’s invoice and is for English language use in the United States of America only. Licensor reserves all rights in the Image(s) of every kind and nature, including, without limitation, copyright, electronic publishing and use rights, in any and all media, throughout the world, now existing and yet unknown, that are not specifically licensed or transferred by this Agreement. No license is valid unless signed by Licensor. This Agreement may not be assigned or transferred without the prior written consent of Licensor and provided that the assignee or transferee agrees in writing to be bound by all of the terms, conditions, and obligations of this Agreement. Any voluntary assignment or assignments by operation of law of any rights or obligations of Client shall be deemed a default under this Agreement allowing Licensor to exercise all remedies including, without limitation, terminating this Agreement, the right to all net worth or financial information of any assignee and the fullest extent of adequate assurances of future performance. Upon request by Licensor Client shall provide Licensor with a full and complete disclosure of any and all uses of each Image and provide Licensor with two (2) copies, without charge, of each and every use of each Image.”
Besides section 8, this is the most important section of the agreement. It outlines the specific terms for how the license is to be used, and for how long (unless modified on page 1), etc. If you have no other terms, you should always have sections 8 and 9 (or similar!)
That concludes this little “business” series of blog posts. Like with any legal documents, make sure you have each party execute these documents, and keep a physical copy for your records. I recommend using physical documents, because it will be much easier to prove non-tampering than with an electronic document. I have attached a full sample agreement for you to review here; if you have questions, please feel free to contact me (using the Contact Me button at the top…) I also encourage you to seek the assistance of an attorney to create your own “invoice and terms” – specific local regulations or other legal details could otherwise create a lot of headaches later on.
Thank you, and have a great Thanksgiving holiday (if you are in the US).