Hi,

I am new to the microstock scene and got a quick legal question:
Is it possible/legal to sell someone other's pictures with his consent? (Let's say I have a friend who wants to earn a little money but doesn't want to waste his time applying to agencies, keywording and uploading the images etc...)

Thank you for your help!

Jack

I think you would need to have your friend sign over the copyrights to yourself, because almost every site I know of asks if you are the copyright holder of the images you are uploading.

Possible - yes.  Practical - no.  Way too many legal issues and paperwork hassles (IMHO) to make it worthwhile.

Hi,

I am new to the microstock scene and got a quick legal question:
Is it possible/legal to sell someone other's pictures with his consent? (Let's say I have a friend who wants to earn a little money but doesn't want to waste his time applying to agencies, keywording and uploading the images etc...)

Thank you for your help!

Jack

Legally this would be possible with a contract, but the sites that I have contacted do not allow it.  I inquired once because I wanted to buy someone's portfolio from them and sell their pictures online.  I was told that I was not allowed to upload pictures I did not take myself.  I forget which site it was that responded the first (either Dreamstime or Fotolia) but after I got an answer from the one I quite trying to get answers from the rest.

Yes you can legal sell other artist images. You need to become educated on rights and contract law, If not hire an attorney to draft a good legal contract that is binding to all parties.
You can purchase by contract the rights to use image. You can purchase limited rights or exclusive rights.
It is call a license to the rights to sell, publish, distribute. It is a legal and binding contract that spells out what you are purchasing from the owner. Terms of sales, rights, length, payment, and etc.

Music, publishers, and marketing  companies use this form of contract to purchase from the artist.

I purchase limited rights to sell and publish on percentage basis or upfront one time only price.
It is just like any other agency that sells your images. If you legally purchase or share rights it is your image to use as bound by the contractual terms of the contract.

Why would you want to let your friend earn money under your name? You do realize that you will need to still claim your earnings from his images on your tax returns, right?

I certainly wouldn't advise you do this, but if you do, remember to keep at least 1/3 of his earnings to pay taxes. Really, if I were you and I were still considering doing this, I'd keep 50% or more of the earnings.

FlemishDreams you have been misinformed, I am just a solo artist and not a group or collective.

In that case, I bow very deep for your quality and production. Yes, the variety is amazing. There is still Iofoto that is a group, so there must be a way to handle it.

the other way is like a marriage. not always ending happily, esp when divorce time comes.

Well if the images are minor, you can always press for alimony.

Quote from: nicemonkey on March 30, 2009, 09:36

FlemishDreams you have been misinformed, I am just a solo artist and not a group or collective.

In that case, I bow very deep for your quality and production. Yes, the variety is amazing. There is still Iofoto that is a group, so there must be a way to handle it.

For what I understood in a thread Ron took part a while ago, Iofoto is not a group, but a company whose owner is Ron and the work his employees do belongs to the company, although they are free to produce images on their own.

Sorry to threaten to hijack this thread, but I have a similar question.

My mother (who is fairly computer illiterate) is crafty and makes greeting cards from scratch (kind of like scrapbooking). I suggested she try selling them as stock and see what happens. Since she can't be bothered with the computer, I thought about uploading a few to my portfolios (with her consent/release) to see how they do. That should be ok right? If a person can upload someone elses artwork with a release, this would be ok too right?

Sort of a related question along the lines of the OP. Are you able to sell images that you have purchased say through an estate auction? I have seen some beautiful medium format negatives go up for sale at estate auctions and have often wondered if they did scan well enough would I be able to sell them (landscapes only of course) or would I only have them for personal use?

No, you cannot  sell these because you do not have a copyright interest in them.  Owning a physical item and obtaining the intellectual property for that item are two discrete and very different things.  Even if the item were in the public domain (because copyright had expired) you still could not claim that your were the copyright owner - which is what most agencies require.  In order to sell the image you would need to have the image licensed to you for that purpose or, preferably, have the copyright assigned or granted to you.

Directly from the BigStock website, as part of the check off list you agree to each time you upload.

This is a binding legal agreement. I understand that:

Photo MUST be taken by YOU, or artwork created by you personally! You must be the legal owner of copyright to the uploaded file. This is very important.

So even if you had a signed, witnessed, and notarized transfer of copyright agreement, you still would violate the Terms of the Agency

This is just one example of my licensing contract that I use for marketing images on my website. I use different license depending on the intended use. Every part of the license is negotiable by Assignor and /Assignee!

Licensing Contract to Merchandise Copyright Images


AGREEMENT, entered into as of the ______ day of ____________, 20_____, between ___________________________________________ (hereinafter referred to as the �Assignor�), located at______________________________________________________________________  and ______________________________________________________(hereinafter referred to as the �Assignee�)_________________________________________________________________
located at______________________________________________________________________ with respect to the use of a certain art, image, painting, drawing, or photograph created by the Assignor (hereinafter referred to as the �Image�) for manufactured products (hereinafter referred to as the �Licensed Products�). 
WHEREAS, the Assignor is a professional Assignor of good standing; and   
WHEREAS, the Assignor has created the image. Assignor wishes to license for purposes of manufacture, sale, and distribution.
WHEREAS, the Assignee wishes to use the Image to create a certain product or products for manufacture and sale; and 
WHEREAS, both parties want to achieve the best possible quality to generate maximum sales; 
NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants,  hereinafter set forth and other valuable consideration, the parties hereto agree as follows: 

1.   Grant of Merchandising Rights.  The Assignor grants to the Assignee the  [ ] exclusive  [ ] nonexclusive right  to use the Image, titled:
______________________________________________________________________ and

described as: ____________________________________________________________________________, which was created and is owned by the Assignor. Assignor shall convey to Assignee the following: the best possible quality duplicate image in the specified format.   ________________________________________________________________
for manufacture, distribution, and sale by the Assignee and for the following period of time: ____________________________________________________________________. 

   2. Ownership of Copyright.  The Assignor shall retain all copyrights in and to the Image.  The Assignee shall identify the Assignor as the creator of the Image on the Licensed Products and shall reproduce thereon a copyright notice for the Assignor which shall include the word �Copyright� or the symbol for copyright, the Assignor�s name, and the year date of first publication. 




   Page 2
3. Advance and Royalties. Assignee agrees to pay Assignor a nonrefundable advance in the amount of $___________ upon signing this Agreement, which advance shall be recouped from first royalties due hereunder. Assignee further agrees to pay Assignor a royalty of _______ ( _____ %) percent of the net sales of the Licensed Products. �Net Sales� as used herein shall mean sales to customers less prepaid freight and credits for lawful and customary volume rebates, actual returns, and allowances. Royalties shall be deemed to accrue when payment has been received from the sale of the Licensed Products.

   4. Payments and Statements of Account. Royalty payments shall be paid monthly on the tenth day of each month commencing __________, 20 ______, and Assignee shall with each payment furnish Assignor with a monthly statement of account showing the kinds and quantities of all Licensed Products sold, the prices received therefore, and all deductions for freight, volume rebates, returns, and allowances. The Assignor shall have the right to terminate this Agreement upon thirty (30) days� notice if Assignee fails to make any payment required of it and does not cure this default within said thirty (30) days, whereupon all rights granted herein shall revert immediately to the Assignor.


   5. Inspection of Books and Records. Assignor shall have the right to inspect Assignee�s books and records concerning sales of the Licensed Products upon prior written notice. 

   6. Samples. Assignee shall give the Assignor _____________ samples of the Licensed Products for the Assignor�s personal use. The Assignor shall have the right to purchase additional samples of the Licensed Products from the Assignee.

   7. Quality of Reproductions. The Assignor shall have the right to review the quality of the reproduction of the Image on the Licensed Products, and the Assignor agrees not to withhold unreasonable approval. 

   8. Promotion. Assignee shall use its best efforts to promote, distribute, and sell the Licensed Products. 

   9. Reservation of Rights. All rights not specifically transferred by this Agreement are reserved to the Assignor. 

   10. Indemnification. The Assignor shall hold the Assignee harmless from and against any loss, expense, or damage occasioned by any claim, demand, suit, or recovery arising out of the use of the Image for the Licensed Products. 

Page 3
   11. Assignment. Neither party shall assign rights or obligations under this Agreement, except that the Assignor may assign the right to receive money due hereunder.

   12. Nature of Contract. Nothing herein shall be construed to constitute the parties hereto-joint venturers, nor shall any similar relationship be deemed to exist between them. 

   13. Governing Law. This Agreement shall be construed in accordance with the laws of ____________________________;
Assignee consents to the jurisdiction of the courts of ____________________________. 

   14. Addresses.  All notices, demands, payments, royalty payments, and statements shall be sent to the Assignor at the following address: ______________________________________________________________________________
and to the Assignee at: _____________________________________________________________________________. 

   15. Modifications in Writing.  This Agreement constitutes the entire agreement between the parties hereto and shall not be modified, amended, or changed in any way except by a written agreement signed by both parties hereto. 

IN WITNESS WHEREOF, the parties have signed this Agreement as of the date first set forth above. 

Assignor______________________________________      

Assignee_____________________________________
Company Name

By__________________________________________
Authorized Signatory, Title
                                   
                  



Page 4
Addendum Page
Grant of Merchandising Rights.  The Assignor grants to the Assignee the  [ ] exclusive  [ ] nonexclusive right  to use the Image, titled:
______________________________________________________________________ and
described as:______________________________________________________________