Usage rights in erotic recordings are the part of the contract that works beyond the fee. The fee is in the account after fourteen days and done. The grant of rights keeps working, often permanently, and it can practically not be fetched back. Still it is the section most people skip fastest, because it is written in formulas that sound like formality. They are not formality. This article explains which three questions every rights clause answers, what the difference between a simple and an exclusive right means in practice and where you should ask.
What a usage right actually is
A usage right is a permission to exploit. You do not give your material away in that, because the material does not belong to you anyway: the author of the recordings is the production or the photographer. What you grant is the permission to show you in these recordings and to distribute them.
This permission comes from your personality right, concretely from the right to one’s own image. Without it nobody may publish a recording of you. With it they may exactly what stands in the contract — and nothing beyond that.
That is why the rights clause is not an annex to the contract, but its core. Everything else regulates a day. This clause regulates the years afterwards.
The three dimensions: period, territory, channels
Every grant of rights answers three questions. How long may it be exploited, where may it be exploited and on which paths may it be exploited. Lawyers say to that in time, in space and in content. All three are negotiable one by one, and all three you can limit independently of one another.
- Period. Either unlimited or fixed to a duration. A limit of three or five years is possible, but as a rule lowers the fee, because after expiry the production has to renegotiate or take the material out of the offer.
- Territory. Worldwide or limited to certain countries. A restriction to the German-speaking area sounds like protection, but on the internet has only limited effect, because distribution can technically hardly be cleanly confined to countries.
- Channels. The practically most important point. Only streaming in the subscription area or also as a freely accessible trailer? Also on data carriers? Also on social networks, where your face can land next to your name? Also for advertising, meaning on start pages, banners and thumbnails?
The difference between a scene in the paid subscription area and the same scene as an advertising clip on an open start page is large for your life and in the contract text often only a half-sentence.
Simple or exclusive right
Beside the three dimensions there is a fourth distinction that is rarely explained. A simple usage right allows the production the exploitation, but prevents nobody else. You could give the same permission in parallel to a second contracting party.
An exclusive usage right excludes everyone else, yourself included. Anyone who has exclusive rights in a scene is the only one who may exploit it. If you later want to use the same recordings for a channel of your own, you need the rights holder’s consent for that.
In practice productions almost always demand exclusive rights, because they resell the material and platforms demand exclusive contents. That is usual in the industry and not automatically unfair. You should only be aware of it if you plan to build a second pillar with your own contents, as described in the section on pay.
What “unlimited in time, space and content” means in practice
This formula is the widest version a contract knows, and it stands in many standard contracts. Translated it means: for ever, everywhere, on all paths.
“For ever” means without an end date, even if in ten years you have another profession. “Everywhere” means in every country, including where you would rather not have the material. “On all paths” means in every medium, and if the contract additionally says “including in future media”, forms of distribution that do not yet exist today are included.
There are good reasons to sign that, because these contracts are also paid accordingly. There is no good reason to sign it without having read it. Which further clauses stand in this document and what you watch for in that is in our overview of the model contract clause by clause.
Sublicensing: when third parties suddenly appear
The sentence most often overlooked is the permission to transfer to third parties. It usually reads inconspicuously, for example that the production is entitled to transfer the rights in whole or in part to third parties or to grant sublicences.
Practically that means: your material can land with a company you have never seen, that has other standards and that has not concluded a contract with you. Your arrangements from the shoot do not apply there; only the contract text applies.
More is negotiable here than many think. Possible are a reservation of consent, a restriction to named distribution partners or at least the duty to inform you about a transfer. Anyone who does not settle that relies on the production remaining the same permanently — and firms are sold, renamed and dissolved.
Why granted rights factually do not come back
This is the uncomfortable part. If a contract was validly concluded and the exploitation stays within the agreed frame, you as a rule do not get the rights back. There are recall possibilities under the Urheberrechtsgesetz (German copyright act) and there is the withdrawal of a consent on a change of conviction, but both are tied to conditions, take time and can lead to damages claims by the production.
The technical side comes on top. Even if a deletion is enforced, copies exist on servers, in downloads and on portals that have no rights and cannot be addressed. That is not scare-mongering, but the basis on which you should decide.
That is why a simple rule applies: decide on the rights as if the decision were final. In practice it usually is. How we go through contracts before the signature and what we check in that is at the safety standards.
Five questions before the signature
- For which period do the rights apply, and what happens afterwards?
- For which territory do they apply?
- Which channels are covered, and is advertising expressly included or excluded?
- Simple or exclusive, and may I use the material myself?
- May the rights be transferred to third parties, and do I learn of that?
If a production cannot answer these five questions in five minutes, that is a result in itself. Serious clients have the answers ready, because they need them daily. If the contract only comes onto the table in the studio, it belongs to the normal process that you read it there in peace before anything starts.
Note: This article places the practice in general terms and is not a substitute for legal advice.
Questions about this?
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