“Usage rights” has become an industry standard way to call the “economic rights” of an author to his / her artwork. But economic rights, the proper term, is only a part of all rights that an author of literary and artistic works, such as a photographer, designer, or writer, enjoys with regard to his / her artwork. Although the term “usage rights” is widely used, licensing of photography, design and writing involves these other rights as well. Let me draw the whole picture.
Intellectual property (copyright) law that controls author rights differs substantially between countries. Particularly striking are differences between French and American intellectual property (copyright) laws. I am established in Paris, France, so any transactions with me as well as my Terms and Conditions are governed by the laws of the French Republic, the laws of the European Union and International Laws. Therefore, my usage rights primer explains the French system of intellectual property laws.
I use the expression “artwork” to name a subset of works of the human spirit called literary and artistic works, that, according to the WIPO (World Intellectual Property Organization) Berne Convention and the French laws, includes “every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatico-musical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science.”
In France, an author enjoys exclusive rights to his / her artwork at the moment of its creation. An artwork is considered created when its physical realization starts, even before the artwork is physically finished, divulgated or published in public. There is no need for any formality, publication or declaration of existence to any third party to enjoy the rights to artwork created.
In France, the author enjoys 2 types of rights to his / her artwork:
The term “moral rights” does not refer to ethical “morals”, but to the ability of the author to control the fate of his / her artwork.
Moral rights protect the personal and reputational, rather than purely economic, value of a work to its author.
Moral rights include the author’s right to allow or object the divulgation of his / her artwork, to receive or decline credit for his / her work, to prevent his / her work from being altered without his / her permission, to retrieve the artwork from the market after it has been published, to oppose to any action in relation to his / her artwork which would be prejudicial to his / her honor or reputation.
Moral rights are inseparable from the author, inalienable and perpetual. Therefore, before the death of the author, his / her moral rights cannot be sold, bought or transferred in any way to anyone. After the death of the author, his / her moral rights can be transferred to his / her inheritors or testament executors.
Economic rights regulate the representation and use of the artwork by third parties.
Economic rights consist of reproduction and representation rights. The author can authorize the copy of a part or the entirety of the artwork so it can be reproduced and distributed by third parties, as well as to authorize the representation of a part or the entirety of the artwork in public. An author can forbid reproduction and authorize representation and vice versa.
A simple criterion helps distinguish between reproduction and representation: media ownership. For example, on the internet, the fact of viewing an artwork is considered representation. The fact of intentionally copying this artwork to your hard disk is considered reproduction.
In exchange of a fee, the economic rights, or usage rights, can be licensed by the author to a third party. Economic rights are licensed for limited use, in a limited way, for a limited time and in a limited geographical space. Licensing limits apply to:
Read more about pricing and how these licensing limits influence the amount of the usage right licensing fee.
Usage rights cannot be sold or transferred without a written agreement. Any spoken agreement is considered void by default. Any uses that are not mentioned in the written agreement are automatically reserved and not authorized. In my case, such a written agreement is the invoice or, for web sites, a detailed contract.
Example 1: I license to you the use of one image of a portrait of a CEO, one time, in one magazine, without exclusivity. The usage rights you license from me do not include anything else. You cannot use the same image in another issue of the magazine, in another magazine, in a press release, on your web site. Unauthorized use is illegal. If you need to use my image elsewhere, please contact me. We will agree on a new price, I will establish a new invoice and I will license additional usage rights to you in written form.
Example 2: You are an art director in an advertising agency and your client once left you a CD-ROM with my images. They told you these were royalty-free images. You used them for their project. Now you want to use the images for another client. Check! They may think they do good to me and to you. They may not understand how usage rights work. The person who gave you the CD-ROM may have never seen my written invoice. Unauthorized use is illegal. Before you use the images, ask to see a written agreement where I state that I license my images as royalty-free. Which I never do.
Economic rights last for 70 years after the death of the author. After that, the artwork enters public domain and anyone can distribute or represent it.
You cannot pay a free-lance, independent photographer, designer or writer to create new artwork and then claim the artwork to be yours. New artwork always belongs to its author. You pay for the license to use (reproduce and represent) that photograph, design or text. The only way to completely own an artwork is to create it by yourself.
As you cannot buy moral rights, even if you license economic (usage) rights, you still cannot change or alter the artwork, including cropping, color adjustment and digital retouching, without a written authorization by the author.
For the same reason, you cannot omit author’s credit without a written authorization by the author.
Moral rights were first recognized in France, before they were included in the WIPO (World Intellectual Property Organization) Berne Convention for the Protection of Literary and Artistic Works in 1928. While the United States became a signatory to the convention in 1988, it still does not completely recognize moral rights as part of copyright law, but rather as part of other bodies of law, such as defamation or unfair competition. The Visual Artists Rights Act of 1990 (VARA) recognizes moral rights, but only applies to works of visual art and does not include photography, design or writing.
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