Photographer License Agreement - Photocase

Status: June 2010

• 1. Scope of Application
• 2. Uploading photographs
• 3. Download Credits
• 4. License for Posting & Presenting Photographs on PHOTOCASE & Elsewhere
• 5. Licensing of Photos to the Downloader
• 6. Basic license
• 7. Extended licenses
• 8. Special Terms: Prints, Third-Party Licensing
• 9. Suing for Copyright Infringements
• 10. Photographer’s Share in Revenues from Fee-Paying Downloads
• 11. Prohibited Photographic Works & Typical Problematic Issues
• 12. Photographer’s Warranty & Liability, Recourse
• 13. Governing Law

1. Scope of Application

The following license Terms for Uploaders apply to all photo uploads done by the Photographer and to all related declarations of intent and agreements reached between the Photographer and PHOTOCASE.

2. Uploading photographs

2.1 By accepting these license Terms for Uploaders prior to uploading a photograph, the Photographer confirms that he/she owns the rights that are required both for uploading the photograph and for PHOTOCASE to subsequently license it to downloaders for further use in accordance with the provisions made.

2.2 On effecting an upload on PHOTOCASE for the first time, the User must disclose his/her full and correct name and his/her full and correct address before finalizing the upload procedure.

2.3 PHOTOCASE reserves the right to reject or delete photographs which do not meet PHOTOCASE’s content criteria or formal requirements. The Photographer has no legal entitlement to post a photograph on PHOTOCASE or to have it left in place there.

3. Download Credits

For each uploaded photograph that is accepted by PHOTOCASE and posted on the platform, the Photographer receives a number of download credits free of charge.

4. License for Posting & Presenting Photographs on PHOTOCASE & Elsewhere

4.1 To the extent required for operating the service, the Photographer grants PHOTOCASE in perpetuity non-exclusive rights of use, unrestricted in terms of territory.

4.2 In particular, the Photographer grants PHOTOCASE the right to place the respective photograph on PHOTOCASE and to produce any copies required to this end. In addition, the Photographer grants PHOTOCASE the right to make the photograph available to the public, to transmit the photograph and to otherwise reproduce it publicly, whereby this shall also include in particular transferral or provision via transmission of the content to other Users’ stationary or mobile terminals in the context of automated subscription (push services) or retrieval (pull services) (e.g. Podcasting, RSS feed, Atom feed, XML interface and other types of technology). The Photographer also grants PHOTOCASE the right to enable the photographs to be found on the Internet using picture search engines, and to allow the respective picture search engine or photo search agency to copy the photographs in miniature format (thumbnails) for viewing purposes and make them accessible to the public.

4.3 The Photographer also grants PHOTOCASE the right to install a hyperlink from the individual pages on PHOTOCASE to social networks, e.g. in particular Facebook and Twitter, and in this context to provide a link (to Facebook, Twitter, etc.) that is allocated to a specific photograph, so that users can post the photograph concerned in their (Facebook, Twitter, etc.) account, along with the title and a thumbnail in each case. For this purpose, the Photographer grants PHOTOCASE the right to issue the license required to any users availing themselves of this possibility.

4.4 The Photographer also gives PHOTOCASE permission to use the photographs for the purpose of further increasing the familiarity and popularity of its own platform, i.e. to advertise for PHOTOCASE as an Internet offer. This may be done both online, e.g. via banners, layers and other common forms of advertising, and offline, e.g. via print advertisements or at all manner of events. PHOTOCASE shall name the photographer as the originator if this is possible technically. In all events, the Photographer shall be informed that his/her photograph is being used.

However, any Photographer not wanting his/her photograph to be used pursuant to this Item 4.4 can refuse permission by adjusting the settings (unticking the box) in his/her user profile.

4.5 Moreover, PHOTOCASE may compile the Photographer’s photographs along with other photographers’ photographs of similar or related content in collections of photographic works, and present these collections as such on PHOTOCASE.

4.6 In return for granting the rights of use specified in Items 4.1 – 4.5, the Photographer shall not receive any remuneration apart from the download credits (see Item 3).

5. Licensing of Photos to the Downloader

5.1 As explained in the General Terms of Use, downloaders can download the Photographer’s photographs on PHOTOCASE and subsequently use them in accordance with the Downloader’s license Terms or place an order for a print. In order to make this possible, the Photographer grants PHOTOCASE the rights of use that PHOTOCASE requires for subsequently sub-licensing the rights of use to downloaders, which they in turn require in order to use the photographs in accordance with the contract.

5.2 PHOTOCASE offers downloaders various licenses for subsequent use of the photographs. The Basic license is available for all photos (see Item 6). The Photographer is also free to decide in the final stage of posting each individual photograph on the platform, whether PHOTOCASE is to be allowed to offer downloaders certain Extended license Options as well (see Item 7).

The content and scope of the Basic license and of the Extended license Options are specified in the following Items 6 and 7. Before actually making a choice and before effecting each upload, the Photographer is again informed in detail about the options available (this does not apply to the Basic license). Exactly which rights of use in the photo concerned are granted to a downloader therefore depends on how the downloader wants to use the photograph and on which license PHOTOCASE is authorised to issue, which in turn depends on the rights of use the Photographer has selected.

5.3 PHOTOCASE does not claim any exclusive rights in the Photographer’s photographs. However, in order to enable PHOTOCASE to legally issue sub-licenses that allow downloaders to use photographs in accordance with the Basic license – and in compliance with the Extended license Options, where applicable (see Item 6 and Item 7) – the Photographer grants PHOTOCASE in perpetuity and without any territorial restriction the necessary number of non-exclusive rights of use that PHOTOCASE needs to this end. The content of the rights granted under this Item 5.3 corresponds to the content and scope of the licenses issued to downloaders as specified in Item 6 and Item 7 below.

5.4 The Photographer issues the license to PHOTOCASE by uploading the photograph(s), after he/she has again been informed in detail about the Basic license and about the Extended license Options, and after he/she has opted for one or the other during the final stage of posting the photograph(s) on the platform. The Photographer submits an offer to PHOTOCASE by clicking on the “upload” button and sending the upload document to PHOTOCASE. PHOTOCASE accepts this offer by making the photograph available on the Photographer’s personal area (“My Photocase”) on the website.

5.5 The above Items 5.1 - 5.4 also apply if individual photographs are compiled in collections (see Item 4.5), and the entire collection – i.e. all the individual photographs contained in the collection – is downloaded for use by a downloader.

6. Basic license

Under the Basic license that PHOTOCASE offers to downloaders after being granted the rights by Photographer, the photograph may be used as follows:

6.1 The Basic license entitles the downloader to download, i.e. store the photograph, and to use it in his/her private sphere as well as for commercial purposes in accordance with this Item 6.1. In addition, the Basic license permits using the photograph as an element in "original artwork" or in "an editorial context." "Original artwork" within the meaning of this provision means new works created by the downloader of which the relevant photograph is an integral part, such as collages, websites, print products, advertising media and materials for promotional purposes. In "an editorial context” means using the photograph in print and online articles laid out editorially and prepared journalistically, i.e. publications which are text-based and make use of the photograph for explanatory or illustrative purposes, or for conveying information, or for the sake of the text’s graphic design. Thus the photograph may be used in TV and video clips, and/or for designing book covers and covers of sound storage media. The downloader is also always allowed to process the photograph when creating original artwork or when using it in an editorial context within the meaning of this Item 6.1.

Under the Basic license, subject to Items 6.2, 6.3 and 6.4 below, the original artwork thus created, or the content containing the photograph that has been thus edited and prepared, may subsequently be comprehensively exploited by the downloader, namely by means of reproduction, distribution, publication and otherwise. PHOTOCASE grants the Downloader in perpetuity and without any restriction in terms of territory the non-exclusive rights of use in the photograph which are required for this purpose.

6.2 In the following cases, the Downloader’s legitimate use of the photograph is contingent on obtaining consent directly from the originator of the photograph:

• Using the photograph in a context involving narcotics, crime or diseases, or in content of a sexual, pornographic, politically extreme and/or religious nature, or in any other operations or content potentially offensive to an average member of society, as well as for advertising tobacco products and/or alcoholic beverages, pharmaceuticals, food supplements (such as e.g. slimming products), birth control products and/or psychiatric drugs; this applies especially and in particular with regard to the persons shown on the photograph.
• If a certain identity is given to a person depicted on the photograph (for example, pictures giving a literal quotation or a testimonial attributed to any of the persons shown).

The above provisions also apply mutatis mutandis if the actual photograph concerned is processed or otherwise altered in any way.

6.3 The following types of usage are not permitted under the Basic license. However, should the necessity arise, there is a possibility of acquiring Extended licenses in relation to these specific types of usage that are otherwise not permitted:

• In cases where original artwork or use in an editorial context within the meaning of Item 6.1 does not apply: merely copying and subsequently using a photograph, merely distributing a photograph or delivering it to third parties – including clients and associated companies – in some other form (e.g. resale, provision-on-demand), making a photograph available to the public, and exhibiting, displaying, performing, broadcasting or otherwise exploiting a photograph. This includes in particular and above all products exclusively or mainly depicting the photograph, i.e. on which the photograph is used without any textual reference, such as being linked to script or other graphic elements. This involves in particular photo databases, photo catalogues, CMS systems and compilations of similar kind, as well as use for depiction on posters, postcards, e-cards, items of clothing, mousepads, mugs or similar items.
• Copying, distributing and enabling public access to original artwork, in order to make it available to a large number of third parties for their own purposes. Similarly, making original artwork available to more than one third party, for instance by making a website template available to the public for downloading, is not permitted. If in any doubt, the downloader must contact the Photographer concerned.
• Distributing print publications and original artwork in a physical form, if the number of items put into circulation exceeds 250,000.

Moreover, using the photographs in connection with content that is offensive, defamatory, racist, pornographic or glorifies violence, or in connection with any other manner of illegal content, is not permitted on principle. This applies in particular with regard to the persons depicted on the photograph.

6.4 Naming Authors & Sources on Photographs

When using a photograph, the Downloader must indicate the photographer as the originator by stating the latter’s name or – if this is not possible – the PHOTOCASE user-name in the imprint or by the picture (copyright notice).; at the same time PHOTOCASE is to be named as the source of the photograph (source notice). When a photograph is used in online presentations, the notice must contain an embedded link to the PHOTOCASE website. An admissible copyright and source notice would therefore read: "Photograph: [name of photographer] / Source: PHOTOCASE [appropriately linked in online presentations]”.

However, photographs may also be used without a copyright notice and without stating the source, provided an Extended license to this effect is acquired (if available).

7. Extended licenses

The following individual Extended license Options are available; any combination (to the extent that they are offered) may subsequently be acquired by downloaders:

7.1 license for Large-Scale Circulation

This license permits use of the photograph as provided for under the Basic license pursuant to Item 6. In derogation from Item 6.3 of the Basic license however, the limitation to a maximum number of items put into circulation does not apply.

7.2 license Omitting Copyright/Source Notice

This license permits use of the photograph as provided for under the Basic license pursuant to Item 6. In derogation from Item 6.4 of the Basic license however, the downloader is not obliged to name the Photographer as the author and/or PHOTOCASE as the source of the photograph.

7.3 Merchandising license

This license permits use of the photograph as provided for under the Basic license pursuant to 6. In derogation from Item 6.3 of the Basic license pursuant to Item 6 of the Basic license however, the downloader is furthermore permitted to use the photograph on products solely or mainly depicting the photograph, and to distribute same to third parties commercially in accordance with the following provisions. The following uses are permitted under this Merchandising license:

Printed products:

• Manufacture and distribution of calendars, postcards, greeting cards, mousepads, mugs, stickers, office supplies and similar merchandise, for up to 10,000 items.
• Manufacture and distribution of items of clothing and fashion accessories, toys and entertainment goods, for up to 5,000 items.
• Manufacture and distribution of posters, bills, art prints and similar carriers, for up to 5,000 items; however, original artwork within the meaning of Item 6.1 of the Basic license has to be created – simply printing the photograph is not covered by this.

Electronic products:

• Using the photograph in email, website and document templates, and for e-cards and wallpapers.

If more than the stated number of items is to be manufactured and distributed, then an extra license for the photograph required may be taken out in accordance with these terms. However, using the photograph in photo databases, photo catalogues, CMS systems and similar compilations is excluded here as well.

8. Special Terms: Prints, Third-Party Licensing

8.1 Moreover, if a user places an order, Photographer grants PHOTOCASE in perpetuity and without any territorial restriction the non-exclusive right to supply the respective photograph as a print to the size requested and for this purpose to enlarge it or have it enlarged by an appropriate service provider, to copy it by printing or some other comparable method, and to make a physical delivery by sending the finished print to the customer. The customer shall not be granted any rights of use in the photograph. For the customer’s benefit however, the principle of the exhaustion of rights pursuant to Sect. 17 of the German Copyright Act and any other restrictive statutory regulations that are applicable shall apply.

8.2 PHOTOCASE reserves the option to have photographs offered by external providers, such as Internet picture agencies, for licensing by their own customers, but the photographer’s specific approval is required for this. Either PHOTOCASE may request approval directly, or PHOTOCASE may integrate the third-party distributor as an additional option in the final stage of posting the photograph on the platform. On giving approval, the Photographer grants PHOTOCASE the rights of use required for this purpose, and in particular the right to grant or assign to the external provider the license which said external provider in turn requires for distribution via sub-licensing.

9. Suing for Copyright Infringements

In addition to the Photographer’s continuing rights and interests, PHOTOCASE also has a legitimate interest of its own in ensuring that the exploitation rights in the photographs – to which the Photographer is still entitled and which are protected under copyright law – are not infringed by users or third parties. The Photographer therefore authorises PHOTOCASE to also take action in its own name to sue for any infringements of copyright or ancillary copyright in his/her photographs, and to assert any rights and claims accordingly.

10. Photographer’s Share in Revenues from Fee-Paying Downloads

PHOTOCASE lets the Photographer share in the revenues generated by fee-paying downloads and by orders for prints of his/her photographs, in accordance with the following provisions:

10.1 If a photograph is downloaded using download credits that have been paid for or in return for direct payment, then the Photographer shall be entitled to 40% of the net amount which the downloader has ultimately paid to PHOTOCASE in return for providing the download and issuing the license. In addition, a system of points is in place under which the Photographer’s percentage share can be increased to up to 60% (see here for details). The Photographer can see the number of points and his/her current share in revenues in his/her personal area (“My Photocase”) on the website. For all Photographers who registered before 19 June 2010, the minimum share in revenues has been increased from 40% to 50%.

The “net amount” is always understood to mean the gross amount paid by the downloader, minus any statutory turnover tax that is payable and minus any fees charged by the payment service provider.

10.2 The percentage share in revenues still applies even if in any individual case download credits are used that were acquired at a discount (e.g. on entering a discount code), or even if a collection is downloaded at a bulk discount. The sole decisive factor is exactly what was actually charged for the download in terms of credits or money payment.

10.3 The share in revenues described in Item 10.1 above applies mutatis mutandis to prints that are ordered and paid for (Item 8.1) and to turnover generated by an external distributor (Item 8.2).

10.4 PHOTOCASE immediately credits to the respective Photographer’s user account his/her share in the amount generated by a download of his/her photograph. The Photographer can see the balance in his/her account at any time in his/her personal area (“My Photocase”) on the website.

10.5 PHOTOCASE pays out the credit balance when it amounts to at least EUR 100 and the Photographer requests that it be paid out. To make such a request, the Photographer merely has to click on the link provided in his/her personal area (“My Photocase”), fill in the necessary bank details, and state whether or not he/she is liable to turnover tax. By way of an exception and if the Photographer expressly so requests, the credit balance can also be paid out at the end of the month, but only provided the balance amounts to at least EUR 10. If the Photographer keeps his bank account at a bank outside the Euro zone, then he/she must assume the higher bank charges incurred for an international bank transfer. Alternatively, the Photographer can also name a PayPal account for the payout to be made.

10.6 If the Photographer still has a credit balance after termination of the license agreement (see Item 9 of the Standard Terms & Conditions) then such balance shall be paid out 14 days after termination of the license agreement, irrespective of the amount at the time.

10.7 When his/her credit balance is paid out, the Photographer is sent a proper credit note by PHOTOCASE.

10.8 The Photographer’s remuneration as specified in this Item 10 is final.

11. Prohibited Photographic Works & Typical Problematic Issues

The Photographer bears sole responsibility for the legality of his/her photographs and their content, also vis-à-vis PHOTOCASE. Moreover, the Photographer warrants to PHOTOCASE that he/she is permitted by law to grant the rights specified in Items 4, 5, and 6 – and also where applicable in Items 7 and 8 – of these license Terms for Uploaders, meaning in particular that there are no legal obstacles conflicting with PHOTOCASE’s licensing of the photographs to downloaders, and that the Photographer’s photographs do not infringe any third-party rights generally (see also Item 12).

In view of the above, the Photographer must carefully check his/her photographs before uploading them, paying special attention to the following problematic issues:

11.1. Origin of the photo

Uploading a photo to Photocase is strictly prohibited, if

• you did not take the photo yourself;
• you found the photo on another photo database, photo catalogues, etc., or you retrieved it from some other location, including but not limited to the Internet, books, magazines, etc;
• you reworked a photo that does not belong to you without the original creator’s consent;
• the photographer has already licensed the photo to a third party and this existing license agreement in any way conflicts with the Photocase Terms of Use.

11.2 Offensive, pornographic, racist or violent content

Photocase will not accept photos that are slanderous, defamatory, pornographic, discriminatory, obscene, sexually demeaning, racist or any photos that glorify violence.

11.3 Photos of property or buildings

To photograph property or buildings and to upload the photo to Photocase is allowed. However, there’s an exception to every rule:

• Photos of copyrighted materials will not be permitted. This can include things such as photos of paintings, photos of sculptures in museums, photos of other photos, photos of dance recitals or theatrical productions (the scenery is usually copyrighted), pieces of furniture, when the design is not exclusive to the practical function. Only the creator of the property has the right to use the photo, and they must grant you permission before you can upload it to Photocase. You are in theory permitted to upload photos of copyrighted material if you are in a publicly accessible place when you take the photo.
• Also the exterior of a building can be copyrighted, as far as the appearance is owed not by only functional requirements. A photo of a copyright protected building may be uploaded only if it is taken from a public place or if the owner of the property grants permission for you to publish the photo;
• Photos of the inside of a building may be uploaded in principle only with the consent of a person or company with the proper authority to grant consent. This can be the owner or on hand or the occupant of the building or the area concerned. The creator of the interior design has rights as well and you may not publish photos of their work if the design extends beyond the simple functionality of the area;
• Photos of military bases, equipment or personnel, court hearings or court buildings, penal institutions and their personnel, police officers or other national safety personnel will not be accepted;
• Photos containing brands or logos will likely not be accepted, better to remove the logo beforehand.

11.4 Photos of people

Photos of people can only be published on Photocase if the person or persons depicted in the photo supplies you with written permission. If the photo depicts a person who has not yet reached the age of majority (18 years old in Germany; 18 or 19 years old in Canada for example) then you must obtain written permission from their parent or legal guardian. In any case, you must produce this agreement or permission form upon request.

Since you permit the Downloader to use your images in a commercial way, i.e. in a non-editorial manner, then uploading photos of contemporary public figures history is not permitted with Photocase;

Photos may be uploaded if the person shown is secondary to the image, i.e. the appearance of that person has no influence on the motif or composition of the picture. It is occasionally not necessary to procure a Model Release. Generally, if the person in the photo is completely unrecognizable, then you may not need a Model Release.

11.5 Rights of owner or occupier

To take photos on private property requires the permission of the owner and/or occupant of the property.

11.6 Privacy, Droit Moral

Private photographs are not permitted without the consent of the person concerned; this applies e.g. to photographs of a private garden or that are taken through a window. Photographs of objects enabling the identification of a specific person, e.g. door signs or car number plates, are likewise prohibited.

12. Photographer’s Warranty & Liability, Recourse

12.1 The Photographer is bound by the warranty obligations laid down by law and also bears liability vis-à-vis PHOTOCASE in all other respects in accordance with statutory regulations.

12.2 In view in particular of the provisions of Item 11 above and of the Photographer’s obligations emphatically reiterated therein, the Photographer shall grant PHOTOCASE full release and discharge from all and any liability and all and any costs, including any procedural costs and any compensation or damages having to be paid:

• if any claim for non-performance or defective performance of the license agreement concluded with the downloader is filed against PHOTOCASE, due to the rights of use in the photograph that are specified in the agreement not having been granted or not having been granted to a sufficient extent, if and insofar as this occurs because the Photographer on assigning the rights breached his/her obligations vis-à-vis PHOTOCASE; and/or
• if any third party files a claim on PHOTOCASE for any infringement of copyright, ancillary copyright, moral rights (including portrait rights), trademark rights or other rights in the photograph to which such third party is entitled.

PHOTOCASE shall immediately notify the Photographer about any claims filed, and insofar as is required and/or possible by law, it shall give the Photographer an opportunity to ward off the claim being asserted. The Photographer shall provide PHOTOCASE with the required supporting evidence of his/her entitlement to use the photograph in the manner for which provision is made on PHOTOCASE (e.g. by sending the model release), and shall also furnish any other information on the matter that he/she has available

13. Governing Law

These license Terms for Uploaders shall be exclusively governed by German law, excluding provisions of German private international law.

© Copyright 2010 Photocase. All rights reserved.