Policies

Please be advised of our Copyright/Licensing agreement

Copyright and Licensing
For real estate photography and commercial architectural photography (unless otherwise contracted), a non-exclusive usage license will be provided giving worldwide usage, for an unlimited time, and with unlimited media privileges. Each project is different and when applicable an estimate will be sent out providing the specific usage for each project to be agreed upon in advance by all parties. This includes the usage agreement which will look like this (sample)

Subject to the terms and conditions below, ( Brian Cole Photography ) the creator of the work (‘Work’) referenced in this document ( {{job_number}} ) hereby grants to {{client_name}} defined herein (‘Client’) a Non-Exclusive license to use the Work Worldwide. This license shall be valid for An Unlimited Time and shall cover publication of the Work in the following media only: Unlimited Media. Any other use of the Work by the Client shall require a separately negotiated license.

As well as the terms which can be found in the terms section below.

“The gist” or key points: Brian Cole Photography retains all rights, ownership, and copyrights to all images. We retain the right to use all of our images for any purpose. Brian Cole Photography does not issue ownership of our images. We give you the client a license to use the image(s) as agreed upon. The license you receive only covers the right of usage for you and your business, it does not extend to anyone else or any other business. Images delivered by and belonging to Brian Cole Photography can not be given or sold in any form by you. Images are not to be digitally altered, as they are a representation of Brian Cole Photography. Images are not to be given to any third-party including but not limited to businesses such as real estate agents, designers, builders, vendors, clients etc. for their marketing and any other business/personal uses without the written permission of Brian Cole Photography. If images are given or sold to any 3rd party and misuse of image copyright and or licensing agreement occurs, all parties (original license holder(you) , the 3rd party and extended parties) may be subject to all laws and monetary damages. As a client of Brian Cole Photography, you agree not to give our images to any third parties, you also agree not to receive and or use any of our images from any third-party. You agree not to use any images belonging to Brian Cole Photography without directly purchasing the license to use said images (licensing cannot be purchased from/by or issued by anyone other than Brian Cole Photography). 

Images must be properly represented as to who (Brian Cole Photography) originally captured them. For all publications please include the photo credit: Brian Cole Photography

If images are found to be used by any party without the purchase of licensing the party found using the images will be contacted in one of two ways. 1) Contacted directly by Brian Cole Photography and asked to purchase licensing (if available) or discontinue use.  If usage rights are not purchased and or unlicensed images are not removed from any and all media (this includes all social media)  within 48 hours, an invoice for the full cost of all images found ($75 per image from a real estate shoot, commercial image price based on the original project, min price $125 per image) in use will be sent to the said party via email.  This invoice is no longer for the purchasing of usage rights but is a fee for illegal use of images. It must be paid to avoid legal action but will not give usage rights to the party. If usage of the images has been discontinued it is the responsibility of the party to notify Brian Cole Photography in writing/email so that the claim can be investigated and to protect said party from accruing unnecessary charges. 2) We also use a third-party service to track our images and pursue legal action, it is at our discretion whether to contact the party directly or use this service.  If this service is used the party may not have the option to discontinue use, fees may be directly pursued. Fees can range from hundreds of dollars to thousands of dollars per image. Brian Cole Photography is not responsible for how the unlicensed images came into the party’s possession or what the party’s knowledge is about copyright laws or our policies. Our copyright/licensing policies are delivered to each client with every image delivery (bottom of the email) and can be found on our website at www.briancolephotos.com on our Policies page.

If the purchase of usage rights is available for the project in question, once the invoice has been paid licensing for the images will be provided so that the images can be used legally. If the project for whatever reason is not available to the party in question the invoice sent will not be for licensing but for illegal use of images. The invoice will still need to be paid and all fees and legal actions still apply. Once paid the matter will be settled but there will be no release of licensing and all usage of all images will still need to be discontinued. When the party is contacted they will be notified whether licensing is available to them or not. There will be no charge if image usage is discontinued immediately.  If the use of an image cannot be discontinued for whatever reason i.e. it’s already been sent to print etc, an arrangement for payment will be made based on the situation.

Additional key points for real estate agents. The licensing you purchase applies to you as an individual and does not transfer to the brokerage that you work with. A couple of notes about this: While you as an agent work with a brokerage that brokerage may use the images for promotion and marketing with your permission. If the time comes that you leave said brokerage they can no longer use the images without purchasing usage rights from Brian Cole Photography. If you start working with a new brokerage the same terms apply. Another important note is the way third party licensing works for Brian Cole Photography. If an agent is hired to represent a listing that Brian Cole Photography has already photographed, the agent can choose to purchase the licensing of those images. Whether this occurs before the original agent is able to sell the home, or after, and the home is being sold again. Brian Cole Photography also has the right to sell the licensing of these images to third parties including but not limited to stagers, designers, builders, architects etc. The license you purchase gives you rights regarding your use of the images, but does not put limitations on, or take away Brian Cole Photography’s rights regarding the images. If you would like to purchase an exclusive license this is available. When you book your shoot you can choose to request either a “realtor exclusive” or “all party exclusive” license. A “realtor exclusive” license gives you the same usage rights as our standard licensing but also ensures that the images will not be licensed to other realtors. The cost for this is the same as the original shoot cost. I.e. $500 shoot + realtor exclusive license $500 = $1,000 total. An “all party exclusive” license gives you the same usage rights as our standard licensing but also ensures the images will not be licensed to any third parties. The cost for this is two times the original shoot cost. I.e. $500 shoot + all party exclusive license $1,000 = $1,500 total.

1. Definitions and terms: This Agreement is by and between Brian Cole Photography (Licensor) and {{client_name}} (Client), its heirs, successors, and representatives. Licensor is an independent contractor. “Image” refers to the visual, in any form, including as digital information, supplied by Licensor to Client. “Service” refers to the photography, related digital or other post- production services Client is commissioning Licensor to perform. “Written consent” includes email correspondence if receipt of the email correspondence is confirmed. All paragraph captions in the Agreement are for reference only.

2. Payment: Client and Client’s representatives are jointly and severally responsible for full payment of all fees, charges and advances as set forth in this Agreement.

3. Rights: Licensor is the sole creator and sole copyright owner of the image(s). Except for rights specifically licensed or transferred elsewhere in this Agreement, Licensor reserves all rights in the image(s) without limitation, and including digital or electronic publishing and use rights in any and all media now existing and yet unknown throughout the world.

4. Licenses: Unless otherwise stated in this Agreement, all licenses are non-exclusive and limited to English language use in the United States of America only. The license lasts for one year from the date of Licensor’s invoice. The licensed rights are not transferred until and unless a) Client accepts all terms contained in this agreement, and b) Licensor receives full payment for images and services rendered.

5. Release: Licensor does not warrant that he or she has secured any underlying or third party rights in the image unless Licensor submits a separate release signed by a third party model, property owner, trademark owner or any other owner of any underlying right. If no such release is submitted, no release exists for any underlying rights in any image nor are any such rights secured.

6. Reshoots: Unless otherwise specifically negotiated, Client shall pay 100 percent of Licensor’s fees, charges and expenses if Client requests that an image be reshot or a service redone unless such a request is the result of an image being lost or rendered unusable prior to delivery, because of a technical error such as defective materials or damage, or equipment or processing malfunction. In the event of such technical error Licensor will reshoot the image or redo the service at no additional fee, if Client advances and pays all charges, and has paid in full all fees and charges for the original image or service.

7. Assignment: Client shall not assign any of its rights or obligations under this agreement without the written consent of the Licensor. Licensor will not consent to such transfer or assignment unless the assignee or transferee agrees in writing to be bound by all terms of this Agreement.

8. Limitation of liability: Client shall indemnify, defend and hold harmless Licensor and Licensor’s representatives from any and all claims, liabilities, damages and expenses of any nature, including attorney’s fees, investigation costs and court costs arising from or relating to Client’s direct or indirect use of the image, or in connection with Licensor’s reliance on any representations, instructions, information or materials provided or approved by Client. Licensor shall not be liable for general, consequential, incidental or special damages arising from this agreement, the service rendered, the images or any acts of omission by Licensor regardless of the circumstances of such omissions.

9. Force majeure. Licensor shall not be in default of this agreement if a delay or failure to perform results from an occurrence beyond his or her reasonable control and without his or her fault or gross negligence.

10. Default: Any action to enforce any term of this agreement or any matter arising out of this agreement shall be brought in the state of Licensor’s principal place of business. If Licensor prevails in any action brought to enforce the terms of this Agreement, Licensor will be entitled to recover actual attorney’s fees, court costs and all other non-reimbursable litigation expenses, such as expert witness fees and investigation costs.

11. Modification, governing law and miscellaneous: This Agreement constitutes the entire understanding and agreement between Licensor and Client regarding the image or service commissioned by Client. This agreement supersedes any and all prior written or verbal representations and agreements between Client and Licensor. No waiver or modification may be made to this Agreement unless in writing and signed by both Client and Licensor. Waiver of any one provision of this Agreement shall not be a deemed to be a waiver of any other provision of this Agreement. The formation, interpretation and performance of this agreement shall be governed by the laws of the state of Licensor’s principal place of business, excluding the conflict of law rules of that state.