DPP Home Business 5 Tips For Avoiding The Rights Grab

Tuesday, August 24, 2010

5 Tips For Avoiding The Rights Grab

Get exposure for your work without losing ownership of it

The only way to find out why a potential client wants ownership of images is by asking the potential client, and exploring the subject of rights to gain an understanding. In some cases, the potential client will candidly admit that he or she doesn’t know why he or she wants ownership, except for the fact that his or her lawyer indicated that such rights are needed. In other circumstances, the potential client may have a very specific reason for believing he or she needs ownership of the images. By finding out the reasons why the potential client wants ownership of the images that you’ll create, you’ll find out if there’s a way to negotiate a deal that will satisfy the potential client’s concerns without giving up all rights.

Tip #4: Be Creative When Licensing. A one-size-fits-all approach to licensing generally lacks the flexibility and creativity that may allow you to satisfy the potential client’s needs while retaining ownership of the images.

The trick to creative licensing is to view the rights associated with images as a bundle of sticks and to license those sticks separately as needed. If the potential client only needs that one particular right, it can be incorporated into a license that still reserves the rest of the bundle of rights for the photographer.

While creative licensing may prevent you from turning away business, caution needs to be taken since certain terms or compromises may have far-reaching implications. Certain types of arrangements may have both short- and long-term ramifications, and those aspects of the arrangements need to be thoroughly considered before entering into the deal. To have a sense of the ramifications, one should always question: 1) how the deal might impact the ability to license or use the same work again in the future (including an assessment of how the deal may impact the value of the work); and 2) whether the deal will impact the ability to enforce rights in the image if an instance of infringement is discovered. If in doubt as to the impact, consult your attorney.

Tip #5: Decide If The Rights Are Worth The Money, Or Walk. Admittedly, there are times when you won’t be able to find a creative solution, or when the client—rightly or wrongly—will insist upon ownership of the images. When those circumstances arise, the only thing you can do is to make a value judgment as to whether the rights are worth the money involved, or whether it’s time to walk away from the negotiating table.

At times, such as Krist’s situation with Frommer’s, the decision is an easy one. At other times, the decision may be more difficult, involve a myriad of considerations, and ultimately, a value judgment: Do the benefits to be gained from the job outweigh the rights to be given up? The analysis can be anything but trivial.

If in doubt as to whether the dollars offered are worth the rights involved in the deal, it may be helpful to think of your business as a business, keeping your eye on the bottom line and the future value of the investment that you’ve made. If the long-term impact of giving up rights won’t further your business, then sometimes, like Krist, you just have to walk away.

Samuel Lewis is a Board-Certified Intellectual Property law specialist and partner at Feldman Gale, P.A. in Miami, Fla., and a professional photographer who has covered sporting events for a quarter century. He can be reached at This e-mail address is being protected from spambots. You need JavaScript enabled to view it or This e-mail address is being protected from spambots. You need JavaScript enabled to view it .


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