Licensing agrement and Usage of Photos and
November 1, 2004
Licensing & Usage Checklist
About Image Licensing
STANDARD TERMS AND CONDITIONS
Please review this document carefully and thoroughly and contact Inovative Creations customer service or your account representative if you do not understand this Agreement, if you wish to use an Image in a manner not permitted under this Agreement, or have any questions. The following terms and conditions apply to your access and use of all material and Images from Inovative Creations.
Standard Terms and Conditions:
The Inovative Creations invoice is incorporated by reference into this Agreement, and all references to the Agreement shall include the Inovative Creations Invoice. Along with the Inovative Creations invoice, these terms constitute a binding agreement (Agreement between you and Inovative Creations Corporation. If you are entering into this Agreement on your employer's behalf, this Agreement applies both to your employer and to you. By obtaining any Image(s) or any material from Inovative Creations directly or via the online site, you agree to be bound by this Agreement. If you choose not to be bound, do not use Inovative Creations' site or download or use any Images.
Use of Images:
"Image" means all images and related informational materials in any medium furnished by Inovative Creations hereunder, including related text, captions, or information. You agree to payment for the license of the Image according to the terms of the invoice and this Agreement. You are required to pay for all Images that you obtain, regardless of whether you use them, unless you comply with the return/credit provisions of this Agreement. Except as specified in the Inovative Creations invoice, Images obtained from Inovative Creations are licensed on a non-transferable, one-time, non-exclusive basis, and are strictly limited to the use, medium, time period, print run, placement, size of Image, territory, and any other restrictions indicated in the invoice or contained on Inovative Creations' online site, and are licensed for use within one year from the date of the invoice, or sixty (60) days for internal evaluations ("comps").
Images may contain listed restrictions, including without limitation restrictions as to time, manner, industry and territory of use, and pre-approval by a depicted person or their representative. Your ability to access an Image does not in itself entitle you to use that Image. Use of any Image contrary to a listed restriction is prohibited. If you do not understand or are unsure as to any restriction, you must contact Inovative Creations prior to download or use of any Image.
License granted by Inovative Creations:
Unless otherwise specified in a separate writing signed by Inovative Creations, your reproduction of Images is limited to (i) internal evaluation or comps, or (ii) the specific use described in your invoice, which together with these terms shall constitute the full license granted. Additional restrictions indicated on Inovative Creations' online site or in the invoice may contain limitations on your use, medium, time period, print run, placement, size of Image, territory, and any other restrictions. Any license granted by Inovative Creations is conditioned upon (i) your meeting all conditions and restrictions imposed by Inovative Creations, and (ii) Inovative Creations' receipt of full payment by you for such use as invoiced by Inovative Creations. Your failure to make full payment when due shall terminate any license granted to you and entitles Inovative Creations to pursue all remedies available under copyright laws. You may not otherwise make, use or distribute copies of any Images for any purpose except as authorized. Inovative Creations reserves all rights to the Images, and you do not acquire any copyright, ownership or equivalent rights in or to any Image as a result of any license Inovative Creations grants to you.
The limited license granted to you is personal and non-transferable; the work you produce incorporating the Image must be for your own use or for the use of your direct employer. If you are licensing an Image on behalf of or for use by a client, that client must be the sole end user of your work. You may not sell, rent, loan, give, sublicense or otherwise transfer to anyone the Image or any right to reproduce the Image (except insofar as it has been incorporated by you into the permitted use as stated in the invoice.
Storage of Images:
You may place Images on your internal computer network for a limited time, provided you limit access to the Images to those having a bona-fide need to facilitate production or creation of any licensed use, but you shall not otherwise distribute or permit access to any Images. Following digital copies within fifteen (15) days. You agree not to store or maintain any digital copies within fifteen (15) days. You agree not to store or maintain any archive of any Image in any format or medium unless your invoice with Inovative Creations permits re-use, whereupon you may store Images solely as permitted by such invoice. This section shall survive termination of the Agreement.
Special ethical considerations apply to editorial, news, and fine art Images. When using such Images, you may not make or permit any modifications to or alterations of the Images (except for standard color correction or minor cropping for space limitations) or to the caption information unless specifically agreed in writing by Inovative Creations.
Model and Property Releases/Clearances:
The rights Inovative Creations grants to you do not include a license to any persons, places, property, or subject matter depicted in an Image, which may be subject to copyrights, trademarks, rights of publicity, moral rights, property rights or other rights belonging to third persons. You shall assume that no model or property releases, or other releases or licenses exist in connection with any of the Images, unless specifically stated in a separate writing by Inovative Creations. Inovative Creations makes no representations or warranties that it owns or licenses any rights nor does Inovative Creations grant you any rights including copyright, trademarks, or rights of publicity belonging to any person, place, property, or subject matter depicted in any Image. Further, Inovative Creations makes no representation or warranty as to the accuracy of any information provided with the Images. You are solely responsible for determining whether your use of any Image requires the consent of any third party or the license of any additional rights, and you should not rely solely on the information provided by Inovative Creations. If you are unsure whether additional rights are needed for your use, you are responsible for consulting with competent legal counsel.
An Image designated as "Model released" means that the person depicted in the Image has signed a release permitting reproduction of the Image depicting such person, subject to the restrictions contained in this Agreement, including without limitation sensitive subject uses. If Inovative Creations erroneously advises you that an Image is model-released when it is not, Inovative Creations' liability shall be limited to the amount you paid Inovative Creations for use of the Image. If an Image depicts a person and is used in a manner that implies the use or endorsement of a product or service by that model, you must indicate that the person depicted is a model and used only for illustrative purposes. Any license granted by Inovative Creations is conditioned upon your obtaining all necessary third-party rights, releases and permissions. You agree to provide Inovative Creations with proof of such releases and permissions upon request.
Without limitation, Images may not be utilized as a trademark or service mark, or for any pornographic use, unlawful purpose or use, or to defame any person, or to violate any person's right of privacy or publicity, or to infringe upon any copyright, trade name, trademark, or service mark of any person or entity. Unauthorized use of these Images constitutes copyright infringement and shall entitle Inovative Creations to exercise all rights and remedies under applicable copyright law, including an injunction preventing further use and monetary damages against all users and beneficiaries of the use of such Images. Inovative Creations in its sole discretion reserves the right to bill you (and you hereby agree to pay) ten (10) times the normal license fee for any unauthorized use, in addition to any other fees, damages, or penalties Inovative Creations may be entitled to under this Agreement or applicable law. The foregoing is not a limiting statement of Inovative Creations' rights or remedies in connection with any unauthorized use.
Any license granted by Inovative Creations shall not constitute a representation that an Image is compatible for use with any other material. You are solely responsible for the use of any Image in combination with any other material, and you agree not to use Images with sensitive topics without Inovative Creations' separate written agreement. Sensitive topics include, without limitation, topics that may depict the subject matter of an Image in a negative or unfavorable light or subject persons to ridicule, and topics regarding all sexual issues, substance abuse, physical or mental abuse, alcohol, drugs, tobacco, AIDS, cancer, or serious physical or mental ailments, or the disparagement of a person or product. Certain Images may be available for use with sensitive subjects for an additional fee. You must contact Inovative Creations for additional information prior to any use of an Image with any sensitive topics.
Prices for use of Images shall be determined solely by Inovative Creations; if you are unsure as to the price applicable to your intended use, you must contact Inovative Creations prior to obtaining an Image. Payment is due within thirty (30) days after your receipt of an invoice or the date specified in an invoice, whichever comes first. A late payment charge of one and one-half percent (1.5%) per month may be added to any unpaid balance after thirty (30) days. The maximum amount permitted by state law shall be imposed on each returned check.
You are responsible for the payment of all sales and use tax, when applicable. Inovative Creations does not accept resale certificates without prior written approval and at Inovative Creations' discretion.
If you cancel rights granted in the Invoice within seven (7) business days from the date of the invoice, you will be charged a $50 transaction fee per Image. If the cancellation notice is received more than seven (7) but less than thirty (30) business days after the invoice date, a cancellation fee equal to fifty (50%) percent of the amount of the Invoice will be charged. AFTER THIRTY DAYS, NO CANCELLATIONS WILL BE ACCEPTED AND THE FULL AMOUNT OF THE INVOICE MUST BE PAID. For any cancellations, you must also pay the full service charge, production fee, processing and handling fee and shipping fee. No license to use the Image will be granted upon cancellation; all cancellations are final.
At Inovative Creations' request, you shall provide to Inovative Creations free of charge, up to three (3) copies of any printed product or publication you create using the Images, or if electronic use is permitted, the URL and any required passwords or the screen captures for our records.
Inovative Creations shall exclusively retain all publication rights arising from your use of our Images.
You agree to indemnify and defend Inovative Creations against all claims (including without limitation claims by third parties), liability, damages, costs and expenses, including reasonable legal fees and expenses, arising out of or related to (i) a breach of this Agreement and any Image restrictions, (ii) the use of any Image either alone or in combination with any other material, (iii), your failure to abide by any restriction regarding the use of an Image.
Credit Line and Copyright Notice:
For editorial uses, you shall include a copyright notice and photo credit adjacent to each Image (in the format: "© photographer's name/Inovative Creations" or as specified on the Inovative Creations online site) with each publicly distributed Image. Receiving credit is a material aspect of the Agreement for Inovative Creations, and in editorial uses of Images, you agree to pay triple the invoice amount if you do not provide such credit and copyright notice. For commercial uses, you shall include the credit described above when customary and appropriate.
Inovative Creations Trademarks:
Except for credits as required above, you may not use the trademarks or service marks of Inovative Creations without Inovative Creations' prior written consent.
Choice of Law / Jurisdiction / Attorneys' Fees:
Any dispute regarding this Agreement shall be governed by the laws of the State of New York and Titles 15, 17, and 35 of the U.S.C., as amended, and the parties agree to accept the exclusive jurisdiction of the state and federal courts located in New York, USA, regardless of conflicts of laws. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly disclaimed. The parties hereto confirm that it is their wish that this Agreement as well as any other documents relating hereto, including notices, has been and shall be written in the English language (Les parties aux presentes confirment leur volonte que cette le convention de meme que tous les documents y compris y tout avis qui s'y rattache soient rediges en langue anglaise). In any dispute between Inovative Creations and you where Inovative Creations prevails, Inovative Creations shall be entitled to recover its reasonable attorneys' fees, legal expert fees, court costs, and other legal expense.
During this Agreement, Inovative Creations may provide you with certain pricing, technical, marketing and other confidential information. You acknowledge that such confidential information encompasses valuable trade secrets and is proprietary to Inovative Creations, and you shall maintain the confidentiality of any "Confidential information" that Inovative Creations may provide to you, and you shall not use or disclose the same without the prior written consent of Inovative Creations. "Confidential information" includes any information that is either designated as confidential by Inovative Creations or that, under the circumstances surrounding the disclosure, ought in good faith to be treated as confidential by you.
Subject to the restrictions and limitations contained in Inovative Creations' online site, an invoice, or under this Agreement, Inovative Creations warrants that it has sufficient rights to grant you the limited license under this Agreement and any accompanying invoice. Additionally, Inovative Creations warrants that the digital copy of the Image provided by Inovative Creations to you will be free from defects in material and workmanship (but not visual artifacts inherent in the original Image) for ninety (90) days following delivery; and, Inovative Creations will as your sole and exclusive remedy for your inability to use an Image and at its sole discretion, provide you with a replacement of the digital copy of such Image, or refund any fee paid by you to Inovative Creations provided you have not made any licensed use the Image. WHILE INOVATIVE CREATIONS MAKES EFFORTS TO USE ACCURATE CAPTION INFORMATION, INOVATIVE CREATIONS DOES NOT WARRANT THAT CAPTION INFORMATION IS ACCURATE. INOVATIVE CREATIONS PROVIDES YOU WITH ITS ONLINE SYSTEM ON AN "AS IS" BASIS. INOVATIVE CREATIONS MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED REGARDING ANY IMAGES, ITS ONLINE SYSTEMS, OR ANY RIGHTS OR LICENSES UNDER THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Limitation of Liability:
EXCEPT FOR ANY LIABILITY WHICH CANNOT BY LAW BE EXCLUDED OR LIMITED, NEITHER INOVATIVE CREATIONS NOR ANY INOVATIVE CREATIONS AFFILIATE SHALL BE LIABLE TO YOU OR ANY OTHER THIRD PARTY CLAIMING THROUGH IT FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR RELATING TO THE USE OR INABILITY FOR YOUR USE OF THE IMAGES, WHETHER FRAMED AS A BREACH OF WARRANTY OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, IN TORT, CONTRACT, FAILURE OF ESSENTIAL PURPOSE, OR OTHERWISE. IN NO EVENT SHALL INOVATIVE CREATIONS' OR ITS AFFILIATES' LIABILITY FOR YOUR USE OF ANY IMAGE PROVIDED HEREUNDER EXCEED THE AMOUNT INVOICED BY YOU FOR THE USE OF THAT IMAGE.
You acknowledge that you have read this Agreement and understand it, and agree to be bound by all its terms and conditions. This Agreement and any listed restrictions constitute the entire agreement between the parties with respect to the subject matter hereof and merge all prior and contemporaneous communications. This Agreement shall not be modified except by a written agreement signed by duly authorized representatives of Inovative Creations, provided that no purchase order or similar document issued by you shall modify this Agreement even if signed by Inovative Creations. If Inovative Creations' performance of any of its obligations hereunder is delayed by labor dispute, war, governmental action, flood, fire, explosion or other act of nature, the public enemy, or any other matter not within Inovative Creations' reasonable control, then the date for performance shall be extended by the time of such delay. If any provision of this Agreement is found invalid or unenforceable, the remainder of this Agreement shall remain valid and enforceable according to its terms. The parties intend that the provisions of this Agreement be enforced to the fullest extent permitted by applicable law. Accordingly, the parties agree that if any provisions are deemed not enforceable, they shall be deemed modified to the extent necessary to make them enforceable and in such manner as comes closest to the intentions of the parties to this Agreement as is possible. This Agreement will inure to the benefit of and be binding upon the parties, their successors and assigns, except that you may not assign or transfer this Agreement without Inovative Creations' prior written consent.
ROYALTY FREE END-USER LICENSE AGREEMENT
Please read this Agreement carefully before purchasing or using any Inovative Creations royalty-free image ("Image") from Inovative Creations. If you are unsure of your rights under this Agreement, or if you wish to license additional rights or add additional users not otherwise permitted hereunder, please contact Customer Service by calling 856.464.6864, or by email at firstname.lastname@example.org.
1. By using an Image or exercising any rights granted under this End-User License Agreement (the "Agreement"), you agree to be bound by this Agreement. If you do not wish to accept the terms of this Agreement, you may return the unused image or Image CD-ROM ("CD") to Inovative Creations within seven days from the invoice date for a refund of the purchase price. Inovative Creations and its suppliers own the rights to the Images, CD, and Inovative Creations Website. All rights not specifically granted by this Agreement are reserved by Inovative Creations.
2. Conditioned upon your payment of the purchase price for the Image or CD and your compliance with the terms of the invoice and this Agreement (including all restrictions), Inovative Creations grants to you a non-exclusive, non-transferable right to use and reproduce Images from the CD or the Inovative Creations Website in the following, and only the following, ways:
Print Uses -- any printed materials, but not "retail photo products" (defined below). Acceptable uses include promotional items (greeting cards, t-shirts, postcards, posters, phone cards, credit cards, templates, CD covers, cassette covers, board games, calendars), magazines, newspapers, advertising, editorials, catalogs, flyers, brochures, reports, disposable packaging, book covers, and educational textbooks. Unauthorized "retail photo products" include, without limitation, greeting cards, calendars, postcards, stationery, posters, t-shirts, ties, "photo mugs", and mouse pads, offered for sale (wholesale and retail).
Other Than Print Uses -- any electronic or digital materials provided that no Image is at a resolution greater than 480x640 pixels and each Image is incorporated into a design in such a manner to make it clear that the Image is not intended to be separately downloaded, copied, or distributed.
Restrictions. Inovative Creations may at any time during the term of this Agreement
notify you that certain Images are no longer available for use under this Agreement
and upon such notification, the license granted by Inovative Creations shall
automatically and immediately terminate. Your sole remedy for any recalled Image
shall be, at Inovative Creations' sole discretion, the replacement of such recalled
Image with another Image or refund of any license fee paid attributable to such
recalled Image. Inovative Creations cannot anticipate all possible uses of an
Image, either alone or in combination with other material that you, or you on
behalf of your client(s), may make. You are solely responsible for the use of
any Image in combination with any other material. Without limitation, Images
may not be utilized:
as a trademark or service mark
for any pornographic, unlawful purpose or use
to defame any person
to violate any person's right of privacy or publicity
to infringe upon any copyright, trade name, trademark, or service mark of any person/entity
for uses covering sensitive subjects including, without limitation, topics that may depict the subject matter of an Image in a negative or unfavorable light or subject persons to ridicule, and topics regarding all sexual issues, substance abuse, physical or mental abuse, alcohol, drugs, tobacco, AIDS, cancer, or serious physical or mental ailments, or the disparagement of a person or product.
3. "Non-transferable" as used in Paragraph 2, means that the work you produce using an Image must be for your own use, or if purchased on behalf of your employer or client, your employer or client must be the end-user of your work. You may not sell, rent, loan, give, sublicense, or otherwise transfer to anyone either the CD or an Image, or the right to use the CD or an Image (except insofar as an Image has been incorporated by you into one of the permitted uses enumerated in Paragraph 2 of this Agreement), and nothing you produce shall grant or purport to grant to any third party a right to use or duplicate an Image. You agree to take all commercially reasonable steps to prevent third parties from duplicating or distributing the Images.
4. When a CD is purchased by a company, this license Agreement authorizes no more than five (5) individuals to use the Images contained on the CD and exercise the rights described in this Agreement. You may not place the CD or an Image on computer or other storage device that is accessible by more than one (1) user at a time via a network connection or otherwise.
5. You shall indemnify and defend Inovative Creations and its image providers against all claims, liability, damages, costs and expenses, including reasonable legal fees and expenses, arising out of or related to (i) a breach of this Agreement, (ii) the use or modification of any Image or combination of any Image with any other material, (iii) your failure to abide by any restriction regarding the use of an Image, or (iv) any claim by a third party related to the use of an Image, alone or in combination with any other material.
6. Limited Warranty. Subject to the restrictions and limitations regarding your use of an Image contained in this Agreement, Inovative Creations warrants that it owns or has obtained sufficient rights to the copyright for the Image(s) to grant you the limited license under this Agreement. Additionally, Inovative Creations warrants that the digital copy of the Image(s) provided by Inovative Creations to you will be free from defects in material and workmanship (but not visual artifacts inherent in the original Image) for ninety (90) days following delivery via this site; and, Inovative Creations will, as your sole and exclusive remedy for your inability to use an Image and at its sole discretion, provide you with a replacement of the digital copy of such Image, or refund any fee paid by you to Inovative Creations provided you have not made any licensed use of the Image. Inovative Creations makes no warranties nor shall Inovative Creations be liable for any Image which: (a) has been modified by you (b) has been combined by you with other images, products, content or materials, or (c) Inovative Creations has previously notified you not to license or otherwise use.
Neither Inovative Creations nor any of its directors, officers, employees, partners, licensors, or agents shall be liable for any indirect, consequential punitive, or incidental damages arising out of the use of, or the inability to use, the CD or Website or an Image, even if Inovative Creations has been advised of the possibility of such damages. In no event shall Inovative Creations' liability (whether in tort, contract, or otherwise) arising out of or relating to your use of the CD or Image(s) or inability to use the CD or the Image(s) exceed U.S.$1,000.00, regardless of the number of claims or Images used.
EXCEPT AS PROVIDED IN THIS SECTION, INOVATIVE CREATIONS MAKES NO WARRANTIES (EXPRESS OR IMPLIED) WITH RESPECT TO IMAGES OR TO INOVATIVE CREATIONS' PERFORMANCE OF ITS OBLIGATIONS. INOVATIVE CREATIONS DOES NOT WARRANT THAT CAPTION INFORMATION IS ACCURATE. INOVATIVE CREATIONS MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED REGARDING ANY IMAGES, OR ANY RIGHTS OR LICENSES UNDER THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, THAT THE IMAGES ARE ERROR FREE, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT.
7. This Agreement shall be governed by the laws of the State of New York, except its conflict of laws rules. Venue for any action respecting this Agreement, an Image, or use or attempted use of the CD, shall be in the state and federal courts sitting in New York County, New York and you hereby consent to the jurisdiction of such courts. This Agreement may not be assigned, nor modified by any purchase order, without Inovative Creations' written consent. If this Agreement accompanies a pre-packaged Image or CD, the terms of this Agreement control over the terms of any license contained in the CD or pre-packaged Image.
CHECKLIST AND GUIDE FOR IMAGE LICENSING AND USAGE
There are a variety of important legal issues that need to reviewed prior to licensing or using images. This checklist and guide highlights common issues that may arise when you license and use digital images. The issues presented in this document are not exhaustive and do not include standard contract and licensing issues. Additional information regarding: licensing, usage, sensitive subjects, copyright, rights, and other important legal issues are contained in the Legal Information and Policies section of the Help system. You are urged to review the other legal documentation in the Help section and to discuss licensing and usage issues with your Inovative Creations account executive (AE) prior to licensing or using image.
IMPORTANT! The information in this checklist and guide is intended to highlight general issues and is not offered as legal advice or a solution to individual problems. You should not attempt to solve specific problems by relying on the information contained in this guide and you are always advised to seek competent legal counsel before relying on this or any information. It is your responsibility to ensure that you comply with all laws regarding your use of an image.
Prior to licensing or using images, the following issues should be carefully reviewed. These issues listed here are not exhaustive and do not include standard contract and licensing issues. You are urged to discuss licensing and usage issues with your Inovative Creations account executive prior to licensing or using images.
ISSUE 1: Pictures that Contain People, Places, and Things
Images often depict a variety of subject matter: people, buildings, art, animals, etc. When you license an image from Inovative Creations, you acquire from Inovative Creations only the limited right to reproduce that image. However, to use the image you still may need: 1) the permission of the people depicted in an image and/or 2) the permission of the owners of places and things who may have rights in such material. You need to obtain additional permissions depends upon the nature and circumstance of your intended use, the material that you may add to an image, the way that you might manipulate and image, and the laws that may apply to your use. Generally, Inovative Creations does not license these additional rights to you when you acquire a license to use a Inovative Creations image. It is your responsibility to license these rights from the proper right owners, or obtain legal guidance on whether your intended use requires that you obtain these rights. This guide illustrates some of the rights and issues.
ISSUE 2: Copyright
Among the most important questions to ask regarding the licensing and use of any image is: Does the image depict works protected by copyright? If an image contains fine art (including paintings, sculptures, photographs, etc.) additional licenses may be required from the artist or his/her estate or agency. You will need to determine whether the art depicted is protected under copyright laws, and whether your use requires that you obtain permission of the artist. Agencies such as the Visual Artist (VAGA) represent many artists and may assist you in acquiring such rights. In addition to the copyright, artist may also have a right of integrity over how images of their art are reproduced, modified, and whether proper attribution is required to be given to the artist. This right of integrity or "moral right" gives the artist certain control over the integrity of his/her work and the right to receive (or not receive) attribution or credit as the artist responsible for the work.
ISSUE 3: Trademarks
Another important question to ask regarding the licensing and use of any image is: Does the image depict trademarks, trade dress, or trade names? A picture containing a trademark, trade dress, or trade name may require you to obtain the permission of the trademark owner if your use could confuse the public as to the source, origin, or approval. For example, if you use in your advertisement a picture of an airplane that contains that airline's logo and colors on the tail, you may need the permission of the airline. Not every use of a photograph depicting trademarks (such as signage or logos) will infringe the rights of the trademark owner, but the risk increases when such you use images for advertising or promotion.
ISSUE 4: Rights of Publicity
Yet another question to ask regarding the licensing and use of any image is: : Does the image depict a person? In many states and countries, people have a "right of publicity" that allows them to control how their name, likeness, voice, and signatures are used. The laws can vary widely, with many laws requiring you to obtain permission of the person before using their picture in certain ways, whether these people are famous or not, or whether they are still living or not. You must make sure that your intended use complies with the law of every territory where you intend to use the image. Use of a person's name, image, or likeness in advertising and promotion nearly always requires their permission. You must contact the person or the people or group representing the personality to clear rights of the personalities. For living personalities, this contact can be a manager, agent, publicist, company, or the person themselves. For famous and deceased personalities, the contact can be an agency (like Curtis Management Group or Global Icons), their estate, lawyer, family foundation, Bank Trust Division, etc. Often, people who appear in images produced for use in commercial advertising sign a "model release" that allows you to use the image in certain ways without obtaining their further permission. Inovative Creations licenses images that are "model released" and can assist you in locating images that are suitable for your use.
ISSUE 5: Rights of Privacy
Also ask this question prior to licensing or using an image: Does the image depict a person? The right of privacy protects against unreasonable intrusions into a person's private affairs. In certain countries, the right of privacy prohibits the use of certain images (for example a picture depicting a crime victim or an accused party). In many states and countries, the person depicted in the photograph must still be living to claim the right. Images licensed for commercial use or for sensitive subject editorial and commercial use may also require model, property, or estate releases (that is, permission from photographed subjects or owners of the objects to reprint their image). When obtaining a model release, you should consider where and how the image will be used, as well as what other material will be used with or added to the image such as captions or text.
ISSUE 6: Property Rights
Another question to ask regarding the licensing and usage of any image is: Does the image depict property belonging to others? Better viewed as an "access right," this right may protect the owner of the property depicted in an image from unauthorized use of the material. A good example is a museum that owns several rare artifacts and restricts access and photography of the artifacts, and may have a right to restrict access and use of their property, or the owner of an animal that may limit access to the animal in return for a fee. Property rights are often claimed by property owners but may not be legally enforceable.
ISSUE 7: Prior Approvals Required by Licensor
Images that require pre-approval for usage may restrict the licensee from certain uses of the photograph. For example, a photographer or a model may require that the image not be used in certain industries (tobacco or alcohol), or he may request prior approval before an image is licensed or manipulated. Additionally, images may be restricted from use in certain territories or for certain periods of time due to prior licenses. You should read the restrictions associated with an image to determine if any prior approvals are needed.
ISSUE 8: Sensitive Subjects
If you intend to use the image for sensitive subject usage, you must contact a Inovative Creations account executive (AE) and notify the AE about all the details of the usage, request sensitive subject permission, and finalize the license terms. DO NOT SIMPLY RELY ON A STANDARD MODEL RELEASE. Using an image of a person for a sensitive subject nearly always requires additional clearances or permissions. Two important things to note with respect to sensitive subject usage: 1) sensitive subject usage pertains to both editorial and commercial usages and 2) an image may be model released, but still not available for a sensitive subject usage. A list of topics regarding sensitive subjects is included below beneath the 'Sensitive Subjects' heading.
ABOUT IMAGE LICENSING
All images for purchase from the Inovative Creations collections are licensed. Images may have either traditional or royalty free licensing. Image licenses are very important, and serve to protect the rights of all parties: the seller or distributor of the images, those who purchase and use images; those who own, create, or produce images; and even those whose likenesses are included in the images. The type of licensing is one factor that impacts image pricing. Inovative Creations understands that image licensing is a complex process. If you have more questions about image licensing, please contact your Inovative Creations account executive.
Rights protection can be an advantage for high-profile projects, such as ad campaigns and promotions. When you use traditional licensing, you are assured of the limited use of the image. You can even request exclusive rights to that image to eliminate its simultaneous use by other agencies and competitors. Traditionally licensed images may require model, property, or estate releases (that is, permission from photographed subjects or owners of the objects to reprint their image). Inovative Creations can deliver traditionally licensed images to you in many formats depending on your need. Options include your choice of electronic files (available in multiple resolutions and file formats) or as transparencies, slides, or proof prints. In order to minimize the time you spend with the traditional licensing process, Inovative Creations account representatives are available to help you understand how traditional the licensing works, as well as how it applies to the images you need for your project.
Standard Terms and Conditions
When you use rights managed content, the usage rights are defined and negotiated for your specific project needs. You have access to millions of single images, many of them unique. The license you have defines how many times the image can be used and in what way. This means that we can monitor use of our images and know "where the images have been." If your project and budget warrant it, Inovative Creations can even provide you with protection against competitive conflict ,or clear an image for safe use in the United States or in other countries.
Pricing for Rights Managed
Pricing for rights managed images varies by how you plan to use them. Factors that affect price include the intended print run, intended use, reproduction size, distribution, and whether you want to purchase exclusive rights.
Pricing for traditionally licensed images is based on how the image is to be used. Some of the contributing factors include intended print run, intended use, reproduction size, and distribution. Your Inovative Creations account executive will help you to quickly determine the license you need.
Royalty Free Licensing
The royalty free license grants you non-exclusive use of the selected image or CD in as many projects as you like, for a one-time flat fee. Once you purchase an image, it is pre-cleared and ready-to-use in advertising, brochures, packaging, web sites, multimedia projects, and more. There are very few restrictions placed on how you can use these images. The royalty free license also allows you to alter an image and create unique works of your own. Inovative Creations royalty free collection offers both individual images available for immediate download online and CD titles with 100 images in a specific category. To purchase CDs, visit . Royalty Free pricing is based on image size and resolution.
SENSITIVE SUBJECTS Images have several layers of legal issues that clients must be aware of prior to their use. There are two primary layers of legal rights to consider: rights to the images and rights regarding the subject matter of the images. One issue of particular importance is that of the use of images for sensitive subjects. If a client intends to license the image for sensitive subject usage (related to one of the topics included in the list below), it is the client's responsibility to contact a Inovative Creations account executive (AE) and to notify the AE about all the details of the usage, to request sensitive subject permission, and to finalize the sale accordingly. Note: Sensitive subject usage pertains to both editorial and commercial usage.
Two Primary Layers of Legal Issues
The two primary layers of legal issues that clients must be aware of prior to their use are:
Rights to the Image: These rights are generally owned by Inovative Creations or its image sources. When clients license the rights in a photograph, Inovative Creations grants permission to reproduce and/or distribute an image in the manner described in the license/invoice.
Rights in the subject matter of the Image. Images may depict a variety of subjects: people, buildings, art, animals, etc. Each of these subjects may require clients to obtain additional permissions from third parties depending upon the nature and circumstance of the intended use. Some of these rights may include: trademarks, personality rights, property rights, fine art rights, etc. Generally, Inovative Creations does not represent or license third party rights. It is the clients responsibility to obtain third party rights or obtain legal guidance on whether their intended use requires these righ
Additional Legal Considerations
Model Releases. Images that depict people may require a model release. When obtaining a model release, clients should consider how the image will be used, as well as what other material will be used with the image. Specifically, clients should consider whether the intended use will involve a sensitive subject.
Model Release and Sensitive Subjects. An image may be model released, but still not available for a sensitive subject usage. For example, a model may consent to being used in an ad to sell cars, but may not grant permission to be used in a drunk driving promotion.
Image Activities and Sensitive Subjects. Clients should not assume that an image of a model engaging in one activity (e.g., a 40-year-old women shown smoking) can also be used for a sensitive subject other than the one in which they are portrayed (e.g., it may not be acceptable to say or imply that she is a drug user, simply because she smokes.
Sensitive Subjects Legal Considerations
There are three other important legal considerations that must be emphasized:
If a client intends to license the image for a sensitive subject usage related to one of the topics included in the list below, it is the client's responsibility to contact a Inovative Creations account executive (AE), to notify them of all the details of the usage, request sensitive subject permission, and to finalize the sale accordingly. Note: Sensitive subject usage pertains to both editorial and commercial usages.
If the image requested for sensitive subject usage contains a person, there must be a model release on file in order for us to clear sensitive subject usage. Inovative Creations cannot clear sensitive subject for images that are not model released. Additionally, model released photos require further clearances from the photographer and/or model to avoid potential defamation (i.e., disparagement of the good name and reputation of an individual). Note: Allow a minimum of 48 hours to clear any needed sensitive subject usage. Not all sensitive subject usages will be approved, and, in some cases, a model may ask for an additional fee for sensitive subject usage, which will be passed along to the client.
Finally, good judgment and common sense demands that clients consider that what is humorous to one group of people is ridicule to another. What might subject a person to ridicule in Middle America may well be accepted in a larger city. This area of rights is subjective, and each company must determine for itself both the need for additional clearance and the level of risk they are comfortable with. It is not the intention of this document or of Inovative Creations to provide legal advise; Inovative Creations simply seeks to raise client awareness of issues that are important to our clients, photographers and models.
List of Sensitive Subjects
The sensitive subject list follows. Note : This list is intended to give the user a range of the topics that fall under the sensitive subject heading; this list is by no means a final or complete list:
Abortion and/or Pro-Life or Pro-Choice
Aids/HIV (and other sexually transmitted diseases)
Breasts and breast enhancements
Drugs and substance abuse
Guns and weapons
Homosexuality and alternate lifestyle issues
Nationalistic and/or religious fanaticism and hate groups
Teenage issues (including: sexual and drug-related issues)
Negative Financial Portrayal
Contact us if your not sure.
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