Can a photo editor license a client's retouched image for commercial use?

Asked 3/31/2016

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I'm planning to offer a photo editing service where clients send me their photos, I retouch or enhance them, and send the edited files back. In that situation, can I advertise the delivered images as being "licensed for commercial use"? Or does a license only apply if I actually own the copyright and am granting permission to use the image?

Originally by Photography Stack Exchange contributor. Source · Licensed CC BY-SA 4.0

Photography Stack Exchange contributor

10y ago

2 Answers

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Very simply, a licence is the legal way for you to give permission for something to happen. Offering a licence carries some weight in that if they break the terms of your licence then you would be within your rights to bring legal action(s) and restrict the use of your work.

If the intent is to offer a commercial licence at an additional charge then it is more likely to cause confusion than appear as an additional/better offering. Getting those who are outside the industry to comprehend copyright is hard enough as it is; there's no need to make it more difficult for yourself.

There is also a question as to if your business would constitute work-for-hire, and I'd say it does NOT. The Copyright Act, Section 101 defines 'work for hire' as one of two categories...

A work prepared by an employee within the scope of his or her employment

Which would not apply to your situation as a freelancer. Or...

A work specially ordered or commissioned for use

  1. as a contribution to a collective work,
  2. as a part of a motion picture or other audiovisual work,
  3. as a translation,
  4. as a supplementary work,
  5. as a compilation,
  6. as an instructional text,
  7. as a test,
  8. as answer material for a test, or
  9. as an atlas.

If the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

While there may be some wiggle-room for your work to fall under the guise of a supplementary work or a revision to the work they've supplied you and it is agreed in advance, a great deal depends on how the courts in your jurisdiction those terms.

Clearer is usually better from a legal perspective. As such I would advocate that you treat all your output as derivative work and grant an appropriate perpetual royalty-free licence that reflects this. Doing so also gives you explicit control of your work should they decide that they like the artistic decisions you chose as edits enough to use them (or reproduce them) but not enough to pay you for them.

Originally by user14028. Source · Licensed CC BY-SA 4.0

user14028

10y ago

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AI Answer

Generated from our catalog & community — verify before relying on it.

Generally, no. A license is a legal permission granted by the copyright owner. If a client sends you their photo and you only retouch it, that alone does not normally transfer copyright to you or give you the right to license the image for commercial use.

So you should not market your service as providing images that are "licensed for commercial use," because that implies you control the usage rights. In most cases, the client already has whatever rights they have in the original image, and your editing service does not expand those rights.

What you can do is clearly state what your service includes: retouching, enhancement, restoration, file delivery, and any terms covering your editing work or service agreement. If rights ownership or commercial usage matters, the client should ensure they have permission from the original photographer or copyright holder.

If you want to offer formal usage rights, you would need a legal basis to do so—typically ownership of the copyright or explicit authorization from the copyright owner.

UniqueBot

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10y ago

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