Terms and Agreements for PhotoBotanic

All materials (digital images, scans and original film) remain the property of PhotoBotanic or the photographer who retains copyright to all works. Specific terms of use will be supplemental to this Agreement and be defined in writing at the time of submission

All material offered by PhotoBotanic with certain exceptions are for limited one time use. Photos may be used for mock-ups and presenations without payment to PhotoBotanic so long as a copyright notice accompanies such use.

Licensing is limited for the sole use of the original purchaser and may not be resold, rented, loaned, sold, or gifted for any reason whatsoever, without written permission of PhotoBotanic for any purpose. This includes separations and digital images made from the original transparencies.

Transparencies may be duplicated, scanned and/or digitized as required for the specific use. Cropping and color correcting are permissible to suit publishing needs but alteration, digital manipulations, or composites are not permitted without written permission on PhotoBotanic.

All film shipped from PhotoBotanic will be free of defect and suitable for publication purpose. Upon acceptance of film submitted by PhotoBotanic, client agrees to insure all film and to return all undamaged via bonded courier. Film Original transparencies have a minimum value of $1500 each.

Returns of unselected images are to be sent back within 30 days of receipt. Please let us know if submissions are to be held longer because of your publishing schedule. Images held longer than 30 days are subject to a $1 per day per image holding fee.

The Client agrees to credit PhotoBotanic and our photographers with a credit line to read © “Photographers Name”/PhotoBotanic. PhotoBotanic agrees not to submit photos that require further credit for designers or property owners without specific written notification to the client. Such notification will also appear on the actual film caption. If a photograph is used without proper credit the Client is subject to a penalty equal to triple the original fee. . If images are used on an Internet web site, PhotoBotanic shall be notified of such use and copyright attributed to PhotoBotanic.

Terms, Releases, and Permissions

PhotoBotanic makes no claim in advance that any particular photo is available for every licensing request. As a rights-managed picture agency we are obliged to our clients and to our photographers to control how our photographs are used. Certain rights may not be available to all photographs. It is the duty of you, the buyer, to define the intended use before we grant license to an image in any particular market. PhotoBotanic can not be responsible for claims resulting from fraudulent or unintended use and will support the photographer and our clients in defense of copyright law.

PhotoBotanic has model and property releases for most but NOT all images in our library. Certain individuals and garden owners have restricted certain uses of the photographs in our collection. Some photos you will see in our files cannot be used without credit to a designer or garden owner. In such a case, where rights are limited or releases are not available for your stated use, we will alert the buyer in advance of delivering an image for publication. It is the buyer’s obligation to disclose the use of a photograph and must satisfy him or herself that all necessary rights, consents, or permissions that may be required for reproduction are secured.

Without specific written notice no photograph in our library may be construed to endorse any product or may be used in any defamatory way that may damage the privacy or character of a garden or person appearing in the photos. Buyer warrants the licensed image will be used in accordance to Agreement terms and will indemnify PhotoBotanic and the photographer from all claims arising out of use and publication of any photograph.

PhotoBotanic reserves the right not to grant license for any reason whether or not a release is on file. PhotoBotanic does not discriminate on any basis, whether race, creed, country of origin, gender, or sexual orientation.

The Client agrees to use photos only under the specific terms granted by the Submission Agreement and other certain terms. These include but are not limited to preventing the publiocation of any photograph that may be construed to be defamatory, illegal, or pornographic. PhotoBotanic will be held harmless to any claims arising from publication of any photograph. Should we be caused to defend our position, the Client will be held liable for all legal fees and damages.

Disputes or claims arising out of submission or use

Any and all disputes, with the exception of copyright claims, arising out of, under or in connection with this agreement, including, without limitation, the validity, interpretation, performance and breach hereof, shall be settled by arbitration in Novato, CA., pursuant to the rules of the American Arbitration Association. Judgment upon the award rendered may be entered in the highest court of the forum, State or Federal, having jurisdiction. This agreement, its validity and effect, shall be interpreted under and governed by the laws of the State of California . If recipient of this contract is an agent for or an employee of a non-U.S. company but operates in a place of business in the United States or its territories, said recipient expressly agrees that any dispute regarding this contract shall be adjudicated within the United States in the manner described here.

If PhotoBotanic is caused to present claims or suit as a result of any breach of the above terms set forth, it shall be made whole for such reasonable legal fees or costs by recipient or user herein.

None of the Images licensed may be used in such a manner so as to defame the subject in the Image, or in a manner which cause the subject to be held up to scorn or ridicule.

Copyright

Not knowing the law does not excuse you from the law. Please, know your responsibilities when it comes to intellectual property. All photos found on the PhotoBotanic website whether displayed in the database or with-in the pages are copyrighted to PhotoBotanic and are protected as intellectual property under copyright law.

The Picture Archives Council of America (PACA) has an excellent description and history of copyright on its website: http://www.pacaoffice.org/copyright.html

A summary courtesy of PACA

The PACA Copyright Commandments:

When it’s created, it’s copyrighted. Use the copyright notice.
The photographer or his agent has the exclusive right to exploit the copyright in each image. That right is for the life of the photographer plus 70 years.
Permission to use a copyrighted photograph for any purpose whatsoever must be obtained in advance in writing to avoid possible violation of the federal law on copyright.
Any unauthorized use constitutes an infringement.
Penalties for infringement are monetary and can be severe.
Combining, altering or scanning photographs or any part thereof, including electronically, is an exclusive right held by the photographer and permission to combine or alter should be obtained in writing prior to any such changes or uses.
Exceeding the terms of a license has been held to be an infringement. A new license is required prior to additional use.
An artist’s rendering of a photograph in another medium is a derivative use of an image and does require the written permission of the copyright owner prior to use.
Re-creating a copyrighted photograph is a derivative use and therefore requires the permission of the copyright holder of the original image.
Reference use of a photograph or any part thereof requires the permission of the copyright holder.

Pricing

The commercial value of a rights-managed photograph is dependent on its usage. A local newspaper photograph does not have the same value as a national billboard though the photo may be the same. Photographers understand their intellectual property is valued differently in different markets, therefor publication rights are broken down into specific uses.

This is the essence of rights-managed photography. Photographers do not give up more rights than a publisher needs and a publisher does not pay for more than they need. In addition the publisher is assured the rights they acquire are controlled and will not conflict with other uses. We recommend the information published by Stock Artists Alliance that discusses the value of rights managed photography including the impact of royalty free (RF) photography. No photograph in the PhotoBotanic library is royalty free.

PhotoBotanic uses several different methods of determining fees including Jim Pickerell’s very thorough book “Negotiating Stock Photo Prices” available by calling 301-251-0720. There are also several on-line stock photo price calculators that use multiple rights criteria to determine prices
http://photographersindex.com/stockprice.htm
http://ozimages.com.au/stockpricing/calculator.asp

All photographs in the PhotoBotanic library will carry the same uniform pricing though rights are controlled and all photographs are not available for all uses. (See Licensing) Each publication right has a different value, be it web rights, textbook rights, advertising rights, etc. and actual price for each use will be negotiated with each client. (See How We Work)

As a very general rule of thumb our minimum usage fee is $130 for a small editorial (non-advertising) photo used in a small magazine. Prices generally start at $250 for a small advertising placement in one local market.

While rates are negotiable depending on use and quantity of images used for any particular publication we quote the following usage fees to small magazines with under a circulation of 50K.

ID photo -- $100
1/4 page -- $130
1/2 page -- $160
3/4 page -- $225
Full page -- $275
Page and 1/2 -- $350
Double page -- $400
Cover -- $750

Research and Holding Fees

The advantage of our on-line database is for the client to find the photos they need. There is no research fee when the client requests specific images found in the database. All original film is sent with no obligation to purchase.

For clients who request a webgallery of images which are not currently scanned, that service is provided subject to a $75 research fee. (See How We Work) Research fees are credited against actual use. If the client asks our researchers to do any custom search that results in sending out original film, that, too is subject to a $75 research fee.

Original film is sent out for a 30-day review period. After the 30 day period we expect all film that is no longer being considered be returned so that we can keep our inventory up to date. Film that is still being considered may be held for an additional 150 days while publication is under production. Film that is held beyond these deadlines is subject to a $1 per day holding fee.

Terms and agreements for PhotoBotanic Copyright Pricing Research and Holding Fees Terms and Agreements for PhotoBotanic All materials (digital images, scans and original film) remain the property of PhotoBotanic or the photographer who retains copyright to all works. Specific terms of use will be supplemental to this Agreement and be defined in writing at the time of submission All material offered by PhotoBotanic with certain exceptions are for limited one time use. Photos may be used for mock-ups and presenations without payment to PhotoBotanic so long as a copyright notice accompanies such use. Licensing is limited for the sole use of the original purchaser and may not be resold, rented, loaned, sold, or gifted for any reason whatsoever, without written permission of PhotoBotanic for any purpose. This includes separations and digital images made from the original transparencies. Transparencies may be duplicated, scanned and/or digitized as required for the specific use. Cropping and color correcting are permissible to suit publishing needs but alteration, digital manipulations, or composites are not permitted without written permission on PhotoBotanic. All film shipped from PhotoBotanic will be free of defect and suitable for publication purpose. Upon acceptance of film submitted by PhotoBotanic, client agrees to insure all film and to return all undamaged via bonded courier. Film Original transparencies have a minimum value of $1500 each. Returns of unselected images are to be sent back within 30 days of receipt. Please let us know if submissions are to be held longer because of your publishing schedule. Images held longer than 30 days are subject to a $1 per day per image holding fee. The Client agrees to credit PhotoBotanic and our photographers with a credit line to read © “Photographers Name”/PhotoBotanic. PhotoBotanic agrees not to submit photos that require further credit for designers or property owners without specific written notification to the client. Such notification will also appear on the actual film caption. If a photograph is used without proper credit the Client is subject to a penalty equal to triple the original fee. . If images are used on an Internet web site, PhotoBotanic shall be notified of such use and copyright attributed to PhotoBotanic. Terms, Releases, and Permissions PhotoBotanic makes no claim in advance that any particular photo is available for every licensing request. As a rights-managed picture agency we are obliged to our clients and to our photographers to control how our photographs are used. Certain rights may not be available to all photographs. It is the duty of you, the buyer, to define the intended use before we grant license to an image in any particular market. PhotoBotanic can not be responsible for claims resulting from fraudulent or unintended use and will support the photographer and our clients in defense of copyright law. PhotoBotanic has model and property releases for most but NOT all images in our library. Certain individuals and garden owners have restricted certain uses of the photographs in our collection. Some photos you will see in our files cannot be used without credit to a designer or garden owner. In such a case, where rights are limited or releases are not available for your stated use, we will alert the buyer in advance of delivering an image for publication. It is the buyer’s obligation to disclose the use of a photograph and must satisfy him or herself that all necessary rights, consents, or permissions that may be required for reproduction are secured. Without specific written notice no photograph in our library may be construed to endorse any product or may be used in any defamatory way that may damage the privacy or character of a garden or person appearing in the photos. Buyer warrants the licensed image will be used in accordance to Agreement terms and will indemnify PhotoBotanic and the photographer from all claims arising out of use and publication of any photograph. PhotoBotanic reserves the right not to grant license for any reason whether or not a release is on file. PhotoBotanic does not discriminate on any basis, whether race, creed, country of origin, gender, or sexual orientation. The Client agrees to use photos only under the specific terms granted by the Submission Agreement and other certain terms. These include but are not limited to preventing the publiocation of any photograph that may be construed to be defamatory, illegal, or pornographic. PhotoBotanic will be held harmless to any claims arising from publication of any photograph. Should we be caused to defend our position, the Client will be held liable for all legal fees and damages. Disputes or claims arising out of submission or use Any and all disputes, with the exception of copyright claims, arising out of, under or in connection with this agreement, including, without limitation, the validity, interpretation, performance and breach hereof, shall be settled by arbitration in Novato, CA., pursuant to the rules of the American Arbitration Association. Judgment upon the award rendered may be entered in the highest court of the forum, State or Federal, having jurisdiction. This agreement, its validity and effect, shall be interpreted under and governed by the laws of the State of California . If recipient of this contract is an agent for or an employee of a non-U.S. company but operates in a place of business in the United States or its territories, said recipient expressly agrees that any dispute regarding this contract shall be adjudicated within the United States in the manner described here. Copyright claims shall be brought in the Federal Court having jurisdiction. If PhotoBotanic is caused to present claims or suit as a result of any breach of the above terms set forth, it shall be made whole for such reasonable legal fees or costs by recipient or user herein. None of the Images licensed may be used in such a manner so as to defame the subject in the Image, or in a manner which cause the subject to be held up to scorn or ridicule. Copyright Not knowing the law does not excuse you from the law. Please, know your responsibilities when it comes to intellectual property. All photos found on the PhotoBotanic website whether displayed in the database or with-in the pages are copyrighted to PhotoBotanic and are protected as intellectual property under copyright law. The Picture Archives Council of America (PACA) has an excellent description and history of copyright on its website: http://www.pacaoffice.org/copyright.html A summary courtesy of PACA The PACA Copyright Commandments: When it’s created, it’s copyrighted. Use the copyright notice. The photographer or his agent has the exclusive right to exploit the copyright in each image. That right is for the life of the photographer plus 70 years. Permission to use a copyrighted photograph for any purpose whatsoever must be obtained in advance in writing to avoid possible violation of the federal law on copyright. Any unauthorized use constitutes an infringement. Penalties for infringement are monetary and can be severe. Combining, altering or scanning photographs or any part thereof, including electronically, is an exclusive right held by the photographer and permission to combine or alter should be obtained in writing prior to any such changes or uses. Exceeding the terms of a license has been held to be an infringement. A new license is required prior to additional use. An artist’s rendering of a photograph in another medium is a derivative use of an image and does require the written permission of the copyright owner prior to use. Re-creating a copyrighted photograph is a derivative use and therefore requires the permission of the copyright holder of the original image. Reference use of a photograph or any part thereof requires the permission of the copyright holder. ©2004 Picture Archive Council of America . All rights reserved. Pricing The commercial value of a rights-managed photograph is dependent on its usage. A local newspaper photograph does not have the same value as a national billboard though the photo may be the same. Photographers understand their intellectual property is valued differently in different markets, therefor publication rights are broken down into specific uses. This is the essence of rights-managed photography. Photographers do not give up more rights than a publisher needs and a publisher does not pay for more than they need. In addition the publisher is assured the rights they acquire are controlled and will not conflict with other uses. We recommend the information published by Stock Artists Alliance that discusses the value of rights managed photography including the impact of royalty free (RF) photography. No photograph in the PhotoBotanic library is royalty free. PhotoBotanic uses several different methods of determining fees including Jim Pickerell’s very thorough book “Negotiating Stock Photo Prices” available by calling 301-251-0720. There are also several on-line stock photo price calculators that use multiple rights criteria to determine prices http://photographersindex.com/stockprice.htm http://ozimages.com.au/stockpricing/calculator.asp All photographs in the PhotoBotanic library will carry the same uniform pricing though rights are controlled and all photographs are not available for all uses. (See Licensing) Each publication right has a different value, be it web rights, textbook rights, advertising rights, etc. and actual price for each use will be negotiated with each client. (See How We Work) As a very general rule of thumb our minimum usage fee is $130 for a small editorial (non-advertising) photo used in a small magazine. Prices generally start at $250 for a small advertising placement in one local market. While rates are negotiable depending on use and quantity of images used for any particular publication we quote the following usage fees to small magazines with under a circulation of 50K. ID photo -- $100 1/4 page -- $130 1/2 page -- $160 3/4 page -- $225 Full page -- $275 Page and 1/2 -- $350 Double page -- $400 Cover -- $750 Research and Holding Fees The advantage of our on-line database is for the client to find the photos they need. There is no research fee when the client requests specific images found in the database. All original film is sent with no obligation to purchase. For clients who request a webgallery of images which are not currently scanned, that service is provided subject to a $75 research fee. (See How We Work) Research fees are credited against actual use. If the client asks our researchers to do any custom search that results in sending out original film, that, too is subject to a $75 research fee. Original film is sent out for a 30-day review period. After the 30 day period we expect all film that is no longer being considered be returned so that we can keep our inventory up to date. Film that is still being considered may be held for an additional 150 days while publication is under production. Film that is held beyond these deadlines is subject to a $1 per day holding fee.		Copyright PhotoBotanic.com