Over the weekend I was doing my reading for my Licensing class when I noticed an interesting linguistic flip. It got me to thinking about how we look at licenses and I thought this alternative might be helpful. In the casebook (textbook) the authors refer to a license not (only) as permission for someone to use some intellectual property, but rather as an agreement by which the IP owner agrees not to sue the user (licensee).
Hmm… an agreement not to sue. I like that. It puts the perceived power back in the hands of the IP owner.
The casebook also points out that in “regular” contracts (not licenses, which are also contacts, but let’s not get confused), if there is ambiguity in the language the courts will construe the contract against the drafter. That means if you present a contract to someone else, like to buy their house, and the contract ends up being litigated for some reason, the courts will be more harsh on you, not the other side, because it was your contract. You had the burden, essentially, to get the wording right and clear and if it wasn’t, well, that’s your bad and you have to suffer the consequences. Using the house example, if you don’t expressly note that the porch swing is NOT a part of the deal, it will be included as part of the house.
However, and this is important, a license is construed by the courts narrowly, that is, in favor of the licensor (the IP owner). If a license does not include something, the courts will assume that the something is NOT included–the porch swing would not be part of the house sale, so to speak (don’t get picky here, the house sale is not a license, but I’m trying to simplify some things for understanding).
These two things can give you more power in your business. When you know that you are licensing ONLY the uses you specifically name in your license and that your license is your promise not to sue (unless the other side screws up), you hold the power in that relationship! While I am all about seeing both sides as equals, too many photographers see themselves in weak positions. Hopefully this will help balance things in your heads.
[as always, this is not a legal opinion or legal advice–just the musings from my own head–consult a lawyer for your legal needs!]