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I am considering starting a photo editing business. The idea is that people will email me a picture, I enhance it and fix problems, and email it back to them.

In the above scenario, can I advertise my services as producing photos that are "licensed for commercial use"? Is this license an actual, tangible thing, or just my permission that means they can use it commercially?

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    Why would anyone need your permission to use a photo to which they already own the rights? Are you claiming ownership over the modified file? If so, isn't that an enormous deterrent to your future customers? – Caleb Mar 31 '16 at 18:29
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    Don't listen to your buddy. Get competent advice from an actual lawyer. You'll want to consult a lawyer if you're starting a business anyway. – Caleb Mar 31 '16 at 18:34
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    Why is there even a legal tag when everyone is just going to say "IANAL" or "Ask a lawyer!"? – JPhi1618 Mar 31 '16 at 18:39
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    @JPhi1618 Because some legal things we can give reasonable general advice on. Other things, you're going to need to get specific, qualified, professional legal advice — and license terms for a business is one of those. – mattdm Mar 31 '16 at 18:47
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Very simply, a licence is the legal way for you to give permission for something to happen. Offering a licence carries some weight in that if they break the terms of your licence then you would be within your rights to bring legal action(s) and restrict the use of your work.

If the intent is to offer a commercial licence at an additional charge then it is more likely to cause confusion than appear as an additional/better offering. Getting those who are outside the industry to comprehend copyright is hard enough as it is; there's no need to make it more difficult for yourself.

There is also a question as to if your business would constitute work-for-hire, and I'd say it does NOT. The Copyright Act, Section 101 defines 'work for hire' as one of two categories...

A work prepared by an employee within the scope of his or her employment

Which would not apply to your situation as a freelancer. Or...

A work specially ordered or commissioned for use

  1. as a contribution to a collective work,
  2. as a part of a motion picture or other audiovisual work,
  3. as a translation,
  4. as a supplementary work,
  5. as a compilation,
  6. as an instructional text,
  7. as a test,
  8. as answer material for a test, or
  9. as an atlas.

If the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

While there may be some wiggle-room for your work to fall under the guise of a supplementary work or a revision to the work they've supplied you and it is agreed in advance, a great deal depends on how the courts in your jurisdiction those terms.

Clearer is usually better from a legal perspective. As such I would advocate that you treat all your output as derivative work and grant an appropriate perpetual royalty-free licence that reflects this. Doing so also gives you explicit control of your work should they decide that they like the artistic decisions you chose as edits enough to use them (or reproduce them) but not enough to pay you for them.

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IANAL, but you don't own the copyright to the images. You would not acquire any rights by virtue of merely retouching their photos. So no, you should not use any wording that implies you are licensing their images for commercial (or any) use.

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    I think — but also am not a lawyer — that the retouched photo would be a derivative work in which the editor would hold copyright on any new creative elements, unless done as work for hire. – mattdm Mar 31 '16 at 18:52
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    The simple (and correct) solution is to draw up an agreement stating what rights the photographer retains and what rights the editor retains. You'll need a basic contract anyway in order to specify payment, expectations, etc. It doesn't need to be complicated, but it's worth paying a lawyer to do it to ensure that there are no loopholes or anything. – Era Mar 31 '16 at 19:17
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    @mattdm Yes, I think this would clearly be work for hire, and in addition, retouching type work does not substantially (or creatively) alter the original enough to be a derivative work. I wouldn't think there would ever be enough original, artistic expression in the derived (merely edited) version to fall into that category – MikeW Mar 31 '16 at 20:43
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    @MikeW Again, lawyers... the standard for creative effort has been held very low in some cases. Also, in the US at least, "work for hire" is not what you might intuitively think it is. See the "second situation" bit in the Wikipedia entry — this definitely wouldn't be "work for hire" without that being in writing. – mattdm Mar 31 '16 at 21:19
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    @JamesSnell It's unlikely to be the definition of any professional organization. Instead, it'll be defined elsewhere in the law — or established via case law. This is a great example of why people say "IANAL" when this kind of thing comes up — it's never simple, and what seem like plain words can be deceiving. – mattdm Apr 1 '16 at 21:49

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