Lawyers, parents and members of the clergy are understandably fond of saying, “Words have meaning”. Sometimes they really don’t. But sometimes a single word can be worth a bucket of money, either entering or exiting your pocket. Photographers and most artists are visual people and looking at a bunch of words is like trying to herd cats, it ain’t easy.
Unfortunately, clients and ad agencies are skilled in the use of words and they know how to use them. And use them to their advantage. Here are a couple of choice words when licensing your work that you ought be both acutely aware and cautious.
Out of Home (OOH)
Here is how the Plus Glossary defines OOH in their licensing terminology. If you don’t know PLUS, Picture Licensing Universal System, please check them out at http://www.useplus.com/index.asp?. The use of OOH is much used by clients and ad agencies in their purchase orders:
“Media that deliver advertising messages to consumer audiences outside of their home, whether delivered outdoors or indoors.”
The Glossary further states (emphasis added by us):
“Includes (but not limited to) billboards, transit advertising, movie theater advertising, and point of purchase.”
PLUS also gives an example of typical use in a license:
“The image will be used in an exclusive out of home campaign, targeting shoppers in that mall.”
So what does the term mean in real life? Answer: The licensee can use the image for just about anything at all. There is virtually nothing that would prevent use of the image for just about any purpose except (arguably) packaging. The failure to use more specific usage terms such as “packaging” would not (arguably) prevent the licensee from using the image for packaging. The term is amorphous, non-specific and guaranteed to result in broad usage of your images by a client that you never contemplated in pricing the job. A dispute over exactly what the parties intended is thus both likely and avoidable.
There is simply no language or grammar that serves to limit or restrict an image licensed for, “Out of Home”. A strict grammatical interpretation would yield the following: “Any use outside of a home is permitted”. That can be taken to mean, posters, billboards, pamphlets, POS (not what you think, it stands for Point Of Sale), POP (Point Of Purchase), magazines, newspapers, FSI (Free Standing Insert in a newspapers), in store videos and on and on.
There are better, far more precise terns that should be used when specifying the licensing you are granting. If you see OOH inserted by your client think, “OOH NO” and cross it out or get it rewritten into specific language and uses. Ditto #2 below.
When a client or agency attempts to get more usage than it is willing to pay for it frequently will make a seemingly off hand request for, “collateral usage”.
Again going to the Plus Glossary which “defines”/describes collateral as:
“Printed marketing and advertising pieces for use in direct request and personal contact, not in publications.”
“Definition: Often reflects a larger broadcast, print or direct mail campaign. May include leaflets, brochures, pamphlets and business cards, among many other possible uses. However, collateral is often misunderstood to comprise an even longer list of uses. Listing individual uses May be more practical for most licensing situations.”
“Term in use: “collateral is delivered directly to the consumer or dealers rather than via mass media.”
Confusing? You betcha!
A plain English dictionary definition of collateral defines it (after using it as security pledged for a loan and such) as “a subordinate part, a side branch”. You would use it in a sentence such as, “There was collateral damage to civilians after the bombing”. In military speak it is used as any damage no matter how attenuated or removed from the primary damage. English translation: a soldier loses a limb in an attack in Afghanistan, his 99 year old sister hears the news and has a fatal heart attack. She has suffered “collateral damage”. Post 9/11 Ed had an attorney agree in court that the bombing of the World Trade Center which knocked out TV broadcast antennas atop the towers resulting in the loss of signals to viewers was “collateral damage” of the terrorist attacks. The judge was persuaded that the term is so amorphous as to have NO meaning and tossed it in a case involving unauthorized use of a model in advertising.
Our view is that a creative should never use that word, if at all possible, as it legitimately opens the door to any number of uses not contemplated. We acknowledge the unfair position you may find yourself or your agent in, when negotiating with a major ad agency, corporation. Understand carefully, having it in a license may make you collateral damage. Even the Plus Coalition cautions against its use because it is often misunderstood.
Our objection is based on a rather simpler premise; the word has no meaning in the context of usage or licensing. If an invoice were to grant usage as follows: “Print, POP and collateral” the licensee would be within its rights to use the images for store posters, pamphlets handed out on the street, direct mailers and so on. If you’re getting such big bucks that it’s worth all that usage, then by all means go for it. We just don’t want you giving away your work for peanuts. A general, vague term like this is meant to keep your fee low, because it sounds so innocent and mild. Be aware of the huge door this opens for your client to exploit your image. No issue with us as long as your eyes are open to this and your bank account is overflowing with cash as a result.
Much preferred – use precise licensing terms and always employ the word “only” at the end of a sentence granting licensing. For example:
“In store use as counter cards only”
“Use in Time, Sports Illustrated and GQ print editions published in 2016 only”
“Use by XYZ, Corp. in YouTube videos promoting or advertising the “Sabre” model chain saw only“
There is simply no reason why your licensing language can’t be crystal clear and precise. No attorney assistance required. Avoid terms the meanings of which any two people (or even attorneys) can fight about.
Keep your license so simple that even a nine-year old can understand it. Always and only.