A precise license agreement is key to delineating the
licensee's scope of future use of the content, understanding what
is being said about the rights being transferred and allocating the
risks which are inherent in online usage. The following are key
considerations that should be kept in mind when reviewing existing
content license agreements to evaluate the status of rights to a
By Julian S.
Millstein, Jeffrey D. Neuburger & Jeffrey P. Weingart|October 25, 2002 at 12:00 AM
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A precise license agreement is key to delineating the licensee’s scope of future use of the content, understanding what is being said about the rights being transferred and allocating the risks which are inherent in online usage. The following are key considerations that should be kept in mind when reviewing existing content license agreements to evaluate the status of rights to a work: � What is the subject matter of the license agreement? � What rights are being conveyed? � Are they the rights that the licensee needs for the online work? For example, if the work is a photograph, does the agreement convey the right to copy, modify, digitize and/or distribute that photograph online? [FOOTNOTE 1]Are the rights exclusive or non-exclusive? � What is the scope of the license to use the work? Are there any limitations on the extent or amount of the work that can be used? For example, is use of the content limited to a particular application? � Does the agreement convey rights to use, distribute and exhibit the works in any and all formats and media or does it exclude future media, either by its express terms or by implication through its various provisions? Does the agreement limit the scope of the license to specific devices, formats or platforms, i.e., online services as opposed to an Internet Web site? � Does the license use terms such as “computer,” “online service,” “electronic rights” or “multimedia”? If so, do the parties to the agreement have a common understanding as to the meaning of those terms? � What technologies are known or could be contemplated at the time the agreement is entered into? What rights with regard to future technologies are explicitly reserved by the licensor? Does the agreement address future distribution technologies? � Does the licensee have an obligation to give credit for the licensed content within the work? � Does any party have a relevant right of approval? � Are any of the rights granted under the agreement revocable? � Are there reversion provisions? Have some or all of the rights reverted? � What is the term of the agreement? Can it be renewed? � How is the licensor compensated? � Do the agreement’s representations and warranties address the special concerns related to online applications — intellectual property, right of publicity, right of privacy, and/or defamation? [FOOTNOTE 2]What is the scope of the indemnification? What is the limitation of liability? � What are the termination provisions? What provisions survive? What are the obligations of the parties after termination of the agreement? � What are the ongoing intellectual property and confidentiality obligations? � Is the agreement assignable? Does the agreement allow sublicensing? � Is the level of sophistication of the licensor an issue?
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