When a film or television producer wants to make use of content supplied by a “stock” library (such as photographs, film clips or music), it is necessary for their legal counsel to review the license agreement in order to assess compliance with the clearance procedures of the E&O (errors and omissions) insurance policy obtained for the particular project. The standard-form license agreements provided by many online stock library providers should be carefully reviewed by counsel for potentially problematic clauses which impact the suitability of the license for the project.
This checklist is not intended to be a comprehensive contract checklist, but rather seeks to highlight problematic clauses which have been noticed in multiple licenses provided by stock libraries.
- Is the license transferable and/or sub-licensable?
- restrictions on assignability/transferability can pose particular problems for “service” productions in Canada, where a Canadian single-purpose corporation creates the production and then transfers all copyright in the production – and the benefit of all contracts entered into in respect of the production – to the “real” copyright owner (often located in the United States)
- Are there any restrictions on the number of copies which can be made of the licensed work?
- for example, a license for a photograph may state that only 50,000 copies of the photograph may be made pursuant to the license – once you add up the number of prints, DVDs and digital downloads which a movie can end up spawning, the threshold might be exceeded
- Are there any circumstances in which the license can be revoked?
- some stock licenses allow for the licenses to be revoked not only for breach of the license by the licensee, but for any reason whatsoever – all the licensor has to do is provide written notice of the revocation; in those circumstances, the licenses usually provide that the licensor is entitled to demand that the licensee cease use of the previously-licensed work following date of the notice
- Are there any representations/warranties as to ownership of the licensed material?
- if the material is provided on an “as is, where is” basis, query why the licensor is not willing to “stand behind” the license
- Are there any restrictions on the manner in which the photography can be used?
- some licenses will prohibit alteration or modification of the licensed material, or will specify that the licensed material cannot be used in specific ways (e.g., cannot be used to suggest endorsements or that the licensed material cannot be used in conjunction with certain types of “offensive” material or in relation to “sensitive” topics) or will specify the manner in which the licensed material can be used (and uses outside the specified uses will be deemed breaches)
- Are there limitations on the rights granted?
- for example, does the license specify that the licensee is responsible for further “clearing” of any rights embedded in the photography (such as the publicity/personality rights of people depicted in the photograph or any trade-marks or logos depicted in the photograph)
- What are the credit obligations specified in the license?
- Failure to abide by the credit obligations could result in the license being unenforceable or revocable.
Because not all stock library licenses are the same, they require scrutiny – they may have none, some or all of the potentially problematic provisions noted above. As an example, the license terms for stockfreeimages.com contain an express disclaimer of representations and warranties (i.e., the licensed material is provided on an “as is” basis, with no representations as to title or anything else), a limit on the number of copies which can be made of the licensed material, a express obligation on the licensee to further clear any rights embedded in the licensed materials (such as the personality rights of individuals appearing in the photos), images cannot be used in connection with “sensitive topics” (such as “mental or physical health issues, social issues, sexual activity, sexual orientation or related, substance abuse, crime or other subjects that can be considered to be offensive or unflattering to any of the models included in the image”) and it is not clear from the wording of the license that including a photo in a film or TV project would even be permissible (the listed of permitted uses mentions only “web sites, magazines, newspapers, books or booklets, for book covers, flyers, application software programs (apps), to make fine art prints or any other advertising and promotional material, in either printed or electronic media, as long as the item in which the image appears does not contradict any of the restrictions below”). That’s not to say that there’s anything wrong with the products and services being offered by stockfreeimages.com – it’s just to say that they might not be suitable for inclusion in films or TV projects.