Photo Ownership / License Question

Short story is.......I took a photo of a NFL Stadium from the parking lot of the stadium while I was there just as a spectator, I was not hired to take the photo, it was purely done for myself. Anyway after I posted it online, The Stadium contacted me, and has been purchasing a license from me to use the image every year for 3 consecutive years. This April, the license expired, but in the new contract, they added a line stating, that I am not allowed to sell or license the photo anyone else, only to them.

I asked why this was added to the contract now, after 3 years of it remaining the same, and this is the email response I got


''Good morning Dustin,

I spoke with our lawyer. As the image is of ------ Stadium and contains all of our marks, and as we do with all requests like this, the Stadium does not grant anyone access to license our image to others.

We own the rights to the Stadium image and all marks.

We had paid you to use the image for our own internal purposes the past few years, but do not license our name/image out to others.

Please let me know if this is agreeable.

Thank you''


I know law, and especially copyright law can be complicated, but is this correct??

They are saying, I own the photo, and they will pay me for a license, but that they own the material in the photo, so only they can pay me to use it?

What if someone else wants to buy the image from me, a musician who is having concert at the stadium? or anybody else having any type of event in the Stadium? I would have to say, ''Sorry I can't sell it to you, I don't own the rights to what is in the photo''??

Is this the same if I take a photo a person, and they are wearing a white t-shirt, jeans and nike sneakers in the photo? I can only sell the photo to the Nike corporation, nobody else can buy it?

I feel they are wrong, but what do I know. I figured I would ask here first before I respond to the lawyer, or even contact my own lawyer to question this, as he most likely will charge me more for 1 hour, than they are even paying me for the image itself.

I appreciate everyones help in advance, thank you!

They are simply adding a clause stating they want to buy an exclusive license to the image, instead of non-exclusive license.

An Exclusive license provides the buyer/licensee with an assurance that the same image will not be licensed to any third party for the duration of the agreement. Exclusive licenses are typically much more expensive than non-exclusive, since they are preventing the content creator from earning additional income from the image, so your price needs to go up accordingly.

This has nothing to do with ownership of a photo.

qlayer2, thanks for responding so quick, I appreciate it!

That is the first thing I thought!

And I asked them that, so you want an exclusive license? I will have to charge more than.

They said no, it is not an exclusive license, that stated they own the markings, logos and name in my image. And they do not license there brand to anyone else. Even when we do not have a license agreement between the 2 of us. I can not sell the image to anyone, but the stadium.

They seem to be just throwing legalese at you in an attempt to throw you off and get an exclusive licence (for that is what it really is) for the same amount they've been paying for a non-exclusive one.

This is the extent to what rights and rights and more rights has gotten us: soon you won't be able to take a photo of a crow perched on a branch because the tree is city property and you can't share/sell the image without their express written consent.

You can either tell them that what they want does cross into the realm of exclusive licensing, or refuse to licence the image to them anymore. They don't have any power to make you licence it to them again or to prevent you from using it elsewhere, unless you agree to their new contract.

Should you decline, they can of course try to strong arm you based on their markings present in the image, though.

Before taking any action based on advice here on POTN, i would consult an attorney. Licensing these days seems to have gotten so much more complicated. I see it on TV shows where they will blur out some identifiable logo, even on tee-shirts, even though it's clear what the product is. An attorney should be able to provide an answer.

I'm sure none of us know the law like they do. The NFL has some pretty powerful lawyers on retainer I'm sure.

But I agree with Alveric; it does sound like they are trying to slip one by you by confusing and scaring you with legalese.

If it is a photo of their stadium, I don't get why they don't just go recreate the photo themselves. I'm sure it wouldn't be too difficult.

Also, where is the line drawn between owning the image of your building and it being public? Like so many skyline and city photos, I don't have to go get a written agreement from every building owner in the photo.

If they OWN the stadium, wouldn't you need a property release before you could license the image to anyone commercially anyway?

Not an attorney and didn't even stay at a Holiday Inn last night, just thinking out loud.

Here's some nice reading on the subject of images that include copyrighted works (such as logos):

http://www.danheller.c​om/model-release-copyrights.html

What I interpreted from the snip of email you posted, and not seeing the contract, is that since your image contains their logo, which is copyrighted, they don't want you licensing to anyone else.

Whether you could or want to is a discussion you should have with your attorney.

Have you licensed this image in the past 3 years to anyone besides the stadium? If not, I wouldn't bother paying the attorney fees, since you aren't likely to do so in the next year. I'd up my price by 50%, call it an exclusive license, and move on.

This is a tough one. Definitely consult your attorney.

They retain copyright/ownership of the team logo on the building. Your photo contains that logo. By licensing your image to someone else, you're (MAYBE) licensing that team logo... that's what their attorney is claiming anyway.


Opinion: If the photo may be easily reproducible by whatever other competent photographer they care to hire, AND you're unlikely to license it to anyone else except the Stadium, there's no sense in annoying them by fighting back too hard. Maybe you're legally right. Maybe they don't need the image that bad.

Case 1: you're legally right and can license the image to anyone you please. You convince them to pay you extra for an exclusive license.
Case 2: you're legally right and can license the image to anyone you please. You ask for a higher fee, they get annoyed and hire a different photographer to take a similar image, and you kick rocks.
Case 3: They're legally right and you can't license the image to anyone else. You apologize for fighting back and they continue to buy the same license - nonexclusive but it doesn't matter.
Case 4: They're legally right, they tell you to kick rocks because you gave the impression of being hard to work with.

Dustman wrote in post #17534520
this is the email response I got

''. . . I spoke with our lawyer. As the image is of ------ Stadium and contains all of our marks, and as we do with all requests like this, the Stadium does not grant anyone access to license our image to others.

We own the rights to the Stadium image and all marks."

They seem to confuse their licensing their image with your licensing your image. It doesn't sound as if their lawyer (general counsel, most likely) has a firm grip on intellectual property law.

I'm not a lawyer but I have spent 20+years working with expensive IP lawyers doing licensing deals.....

The key issue here is usage vs sales. But first some background...

You took a photo of a building, which happens to have some logos on it. Their inclusion in the image is incidental - they are not the focus of the photo (the building it) but they happen to be on it so they end up in the photo.

The owner of the franchise/NFL own the copyright in the logos and they are probably protected as Trademarks too.

1. Trademarks do not give 100% exclusive rights to use. They simply stop someone else using the same mark for the purpose of trading (in the same market). So you couldn't use the mark to set up a football team or sell t-shirts.... but that does not mean you can't sell a photo which happens to include the logo.

2. Likewise incidental use of a copyright work in an image doesn't prevent you selling that photo.

So you could sell an art print of the photo or include it in a photo book. You could also license it to a newspaper/magazine that was writing a story about the team/stadium (editorial use).

What you (or anyone else) can't do is use the image to promote their business - note the key term here is "use". You can sell the image to Bob's Hotdog Company but they wouldn't be able to use the image in an advert without getting into trouble. Now obviously no sensible company is going to license an image they can't use so effectively you can't license it (except to the newspapers/magazines as mentioned above).

Conclusion
Yes they are somewhat trying it on. You can't license the image to another company for commercial use (that means use in advertising) but you can license it for editorial use or sell prints. If they want you to give up those sources of potential revenue and have an exclusive license they should be willing to pay extra.

Also if the shot is particularly interesting you could suggest that they sell framed prints in their team shop.

Seems as though the wording needs to be changed in the contract to say commercial license as opposed to selling he image at all since the OP still retains the capacity to sell images as prints or for other editorial uses.

Dustman wrote in post #17534520
I know law, and especially copyright law can be complicated, but is this correct??

They are saying, I own the photo, and they will pay me for a license, but that they own the material in the photo, so only they can pay me to use it?

What if someone else wants to buy the image from me, a musician who is having concert at the stadium? or anybody else having any type of event in the Stadium? I would have to say, ''Sorry I can't sell it to you, I don't own the rights to what is in the photo''??

Is this the same if I take a photo a person, and they are wearing a white t-shirt, jeans and nike sneakers in the photo? I can only sell the photo to the Nike corporation, nobody else can buy it?

I feel they are wrong, but what do I know. I figured I would ask here first before I respond to the lawyer, or even contact my own lawyer to question this, as he most likely will charge me more for 1 hour, than they are even paying me for the image itself.

I appreciate everyones help in advance, thank you!

As shooter of the photo, YOU own the copyright ONLY!
As the photo contains an image of a buiding, whose owner has NOT granted you a 'property release', you have NO 'commercial rights', that is you cannot use the photo to promote yourself, promote your business, nor provide the image to anyone else to promote THEIR business via use of your photo. 'Promotion' can be via web site, printed materials (brochures, etc.), or as a window display to attract customers, and other forms of promotion/advertising. (Similarly, if a person was recognizable in the same photo you would need a 'model release' from them before the photo can be used commercially.)
Inability for 'Commercial use' does not prevent you from making prints and selling them as decor for home/office or museum/gallery.

I thought property releases had never been addressed or tested by law...

I understand the logo, but I don't think a photo of the building without the logo would be restricted from commercial use.

Dustin-

As a mater of copyright law, I think it would be easy for them to show evidence that commercial use of images of their building with their logo require a property release. I don't know of any case law where the photographer won in this type of case. Its certainly easier for them to fight you than for you to fight them, and they may ban you from the stadium entirely.

As a mater of business, it would be stupid to spend $$$$ on lawyers when your revenue is only $. You may wind up to be legally right and still really loose. Please keep us updated on your story no mater what the result. There are important lessons for the real business of photography for all of us here.