Yes we’re getting technical, with a legal issue that’s often ignored by small businesses but one that could come back to bite you if you don’t get it right. In this episode, we’ll outline how to develop content licensing agreements over the content you use – be that photography, video, social posts or illustrations.
AMIRAH JIWA: From Courier, I'm Amirah Jiwa.
DUNCAN GRIFFITHS NAKANISHI: And I'm Duncan Griffiths Nakanishi.
AMIRAH: And welcome to Courier's Workshop podcast. Every two weeks, Workshop breaks down one essential business topic and explains how it could be useful for you. Our goal is to get you just the right amount of info to help you apply what we're talking about to what you're working on. I'll be speaking to experts with practical tips and founders with relevant experience.
DUNCAN: And I'll be explaining essential terms and summarising the key takeaways at the end of the show.
AMIRAH: Today, we're covering one of those pesky little topics that's easy, but risky for small brands to ignore: content usage rights. It can seem counterintuitive but, as a brand, even if you pay for content to be made, you don't automatically own it. The copyright stays with its creator and you need a licence to use it. To avoid getting into legal trouble down the line, it's important to get a written agreement in place that outlines exactly how and for how long you're allowed to use that photo video or social media post you commissioned. Don't take it from me, it's what our guests said.
GUEST #1: Both parties could exploit a situation where a clearly defined agreement has been put in place and that's really something that you have to watch out for.
GUEST #2: So what we say from the get-go is: use licenced content to build your company so, as your company grows, it's just one less headache to think about.
GUEST #3: Ultimately, ignoring it and then going wrong can put brands in a lot of hot water.
AMIRAH: This is more of a technical subject than others we've covered on Workshop, so we thought we'd get in a lawyer to really clear up the legal nuances of why you need to pay to use content, and how to get a legit agreement in place with any content creators you work with. Here's Jasmine Boadi, who specialises in media, entertainment and fashion law and has lots of experience looking at agreements between brands and content creators. Jasmine, let's start by defining content creators. Some examples are more obvious than others, but I know this can be a wider range of people than you might initially assume.
JASMINE BOADI: The legal definition of a content creator can be married up to what we would call a creator of an original artistic work. The most obvious one nowadays is influencers: people who are in and of themselves a brand and who have the ability to sell a product, whether via Twitter or Instagram, just by using their brand identity. You could also be talking about a production company, an entity whose sole purpose is to produce video content or edit content. Or photographers, taking photographs on behalf of a brand. In this day and age, things like TikTok, where you have 17-year-olds who are now choreographers, would still be considered as creators from a legal perspective. It's ultimately anyone who is creating original content, or producing goods or services with intellectual property behind it.
AMIRAH: So these content creators have some intellectual property that they've created and therefore own. How can a brand legally use that content?
JASMINE: For example, a photographer would have copyright in a photograph that they have created. In order to lawfully grant the opportunity for somebody else to use that, they need to grant a licence. If we were to try and define the licence, we would say it's the lawful grant of permission to do something that would otherwise not be legal or allowed. More often than not, we see that in the context of a contract wording, which is as simple as: 'I, the content creator, grant brand X a licence for use of my content.'
AMIRAH: And what kinds of things need to be included in that contract or content licence?
JASMINE: So I think the two key things are establishing what exactly that licence covers. Once you've done that, it's about establishing the scope of the licence. You need to think: is it a worldwide license? Or is it something that I'm going to be using just in a specific territory? You also need to think about revocable and irrevocable licences. If something's revocable, you have the ability to take it back. Then you want to think in terms of scope. How long is this licence going to last? Is it going to last forever? Or is it limited for a specific amount of time? You also want to think about exclusivity. As a brand, am I the only entity that has the right to use this particular piece of work or piece of content?
AMIRAH: Any advice for a small brand that wants to put together one of these agreements, but maybe doesn't have a law firm on retainer?
JASMINE: As a lawyer, I have to be risk averse. I would say it is important to get a lawyer but of course, I'm so aware that lawyers nowadays can be pretty expensive. At the very minimum, I would say perhaps getting a solicitor in at the first instance to create some easy templates that are really intuitive, that can be used and tweaked going forward or as needed. For brands who maybe have never come across lawyers or law firms and don't even know where to start, Chambers and Partners is a really, really good resource to look at online. So if you go on to chambers.com, you can have a look at firms and/or lawyers that specifically have expertise in a certain area. Of course, there are so many resources online, examples of template wordings and draft contracts that you can pay for or that are free, but I think the risk with that is oftentimes you don't know who's written them, you don't know where they're from, they might be drafted by someone who is actually not a qualified solicitor. More frequently, though, they might be drafted by an overseas solicitor.
AMIRAH: Finally, any other advice for brands looking to keep all their ducks in a row when they're working with content creators?
JASMINE: So one thing that I think brands in particular need to be aware of, especially when they are using content creators to create is advertising. At a very high level, they need to be aware of advertising standards, regulations. They want to make sure they're really clear about something as simple as saying to an influencer or content creator: please make sure that you're adding the appropriate hashtag in your content. Or, if you're a photographer and you're being part of this project, please make sure that if the content is, for example, relating to tobacco or relating to alcohol, that you're not including individuals under age. At the very highest level, brands seem to be aware of what they are.
AMIRAH: Hopefully hearing from Jasmine convinced you that you need to get these agreements in place. But what kinds of things should you be asking content creators for? And how do you get them to agree? We spoke to Andrew Antoniades, business director of full service creative agency 11.12 about exactly that. Andrew, in a nutshell, what are usage rights? And why do brands need to make sure that they have them?
ANDREW ANTONIADES: The brand is paying for the right to be able to use that creative output for a certain period of time in certain territories, and normally defined, as well, on certain channels. Will that be used across print? If it's going to be used digitally or online, will that just be used on their social channels or, actually, are they planning on pushing the kind of media spend behind that? They might promote a social post, for example. It's always good practice to build in kind of options at the time of commission so that both parties are also protected by that. And it also really encourages more of that transparency as well. The creative is being paid fairly for that work and really then the brand is protected against the leverage of any inflated fees for images that, frankly, they've already covered the cost of production.
AMIRAH: And, in your experience, what are the standard terms that brands should expect when they commission content?
ANDREW: From a standard perspective, there would be an expectation that you can feature this content on your own channels. So whether it's on your website, or your social channels, that would be your base minimum. And normally, I would say we go in at one year for that.
AMIRAH: How do you suggest brands approach getting those usage rights that they need?
ANDREW: Ideally, a brand should have an idea of where they might use it. It's about being as specific as possible. At the beginning of this process, to say I want it to appear across all of my retail spaces for a year, if someone hasn't done their research, they could give you a huge finger, because they don't know how many retail spaces you've got. Whereas, if you're very explicit up front to say: we have one store, it's in London, where this content would be shown on video screens. To be as specific as you can be allows you to kind of get the best out of it. A lot of times, the way that people approach this is to keep it really vague. By keeping it vague, they think they can probably get away with a little bit more. To be honest, you're just giving the agents and the creative free rein to contest something that wasn't clearly defined. At the end of the day, a lot of clients may just go with one sentence where they might say: we want online usage for our owned and paid channels, that's going to be worldwide, and we want it for one year.
AMIRAH: What happens when the brand knows what it wants in terms of usage rights, but the creator doesn't really want to give it to them?
ANDREW: It's about a dialogue. It's all about a conversation. If something comes back to you, and it's much higher than you'd expected originally, have a conversation with them, see where you can meet a middle ground that works for all parties within the proposed budget. What is your negotiation strategy? What is your red line? Where will you absolutely not go past, whether it is in terms of the budget that you're looking at, whether it's the number of territories or how you actually can use it? But try and be realistic.
Something which I think is really interesting for smaller brands when talking to these content creators, is that you might have much more clearly defined values. You might much more clearly stand for something versus these bigger brands where, frankly, it can become quite confused and convoluted. You'd be surprised how many influencers or photographers or models that love your brand, that love what you stand for and what you're trying to put out there in the world – often, they're willing to give you a bit of a better deal.
AMIRAH: If you don't have the resources to commission your own content and get in place the right usage rights, there is another option: buying content that is already licenced and ready to use. Our final guest is Shaun Singh, co-founder of Death to Stock, a stock photo site that offers membership to brands looking for fully licenced content. Shaun, why should small brands consider buying already licenced content instead of licencing their own?
SHAUN SINGH: It's extremely powerful for a small business, where now they can have expert photography with a click of a button. The real major benefit of it is in skills, and it's very cost-effective. For a small business owner, you cannot invest in original content, the cost, or the knowledge that's needed in putting together a production team, a creative treatment, all that’s needed to execute the actual shoot as well as the posts.
AMIRAH: And so what does Death to Stock offer in terms of content?
SHAUN: When we set out on our very first startups, it was very hard to find licenced stock photos. It's always been reserved for the much larger online brands. Just, for example, if we went to licence a photo commercially, it's going to cost us $500 to $600. If we were to swipe a photo using Google Images, it opens up to a whole issue of litigation. So what we started doing was bringing our own production team together, our own talent, our own models, and said: let's do this properly. Let's get a lawyer involved, get all the releases signed, and every single one of our shoots is fully licenced. That means all the talent have signed legal releases, as well as photographers and videographers and so on. We kept it as a standard licence, which covers the socials, the website, as well as an extended licence, which means products for resale as well as broadcasting, television and even outdoor billboards.
AMIRAH: When you say fully licenced, what do you mean? What's covered by a Death to Stock licence?
SHAUN: If there's a model, and when you're using someone's likeness to sell a product or build your brand, that person needs to sign a release for their likeness. The next one is the creator of the photos, meaning the photographer, the videographer, the stylist, the makeup artist, all these people are sharing their own intellectual property. They are having some sort of creative input into the final product, being the images, right down to sometimes even the property or location. A location may need a release, because someone owns it and everyone needs to essentially sign their rights away to the client. And that's us. What we do is we capture all those licences in our membership. When you sign up to Death to Stock, you have direct claim to those licences, meaning that if you use it within our terms of service, you will be covered.
AMIRAH: And at what point do brands need to start taking this legal stuff really seriously?
SHAUN: When you are launching, and you need something free, and you're very scrappy, that's fine. But as soon as you go from amateur to official, take everything seriously. Everyone knows that tipping point, whether it be making your first real sale, or potentially even hiring your first employee, that's when you flip the switch.
AMIRAH: Any tips for small businesses to manage licences for the content that they use?
SHAUN: What we always recommend for new entrepreneurs, new business owners is that they need to have some sort of audit process. Many run into the issue of having a backlog of photos that are very integral to their online brand presence, but not having all the legal releases signed.They'll go from iteration to iteration and kind of just forget where the original photo came from. When you go back to track the photo, it all becomes very, very difficult. Having one day a year, or even one day every six months, just to sit back and have a look at all your content on your website, on your Instagram, on any form of ads you're running to check you have the right releases for your content is useful. If you don't, it's sometimes as simple as reaching out to the provider and asking for the releases and they will always send it very quickly. Likewise, if you don't have a release for that image, just see if you can replace it.
AMIRAH: Thanks so much to Jasmine, Andrew and Shaun for all their valuable insights. If you want to learn more about the content licencing and usage rights, head to mailchimp.com/courier for our step-by-step guide on getting a solid agreement together. Now, here's Duncan to wrap up with key takeaways from today.
DUNCAN: 1) No matter how small your business, you need to make sure you have a licence in place that covers the content you're using and the way you're using it.
2) Before working with a content creator, think about how, where and for how long you'll want to use what they make.
3) This is a legal issue with legal repercussions. So make sure you get a lawyer involved at some stage to ensure the agreements you put in place cover everything they need to.
That's it for today. If you have any ideas or feedback for us, get in touch at workshop@ couriermedia.co.
AMIRAH: Workshop is back in two weeks. See you then.