Attorney Steve® Photo Infringement Law - Use of Editorial Images for commercial purposes.
Most companies want to make sure they are respecting the intellectual property rights (namely, copyrights) of other artists and photographers. One interesting use of images involves purchasing "stock photos" from sites like Getty Images (iStockPhoto.com), Alamy, and Shutterstock. These content licensing companies provide the rights to use images, photographs, videos, and illustrations for certain specified purposes. As long as you are using the images within the rights granted, there is usually no problems.
However, many people like to spruce up their blogs and videos with images of celebrities, sports stars and politicians. In these instances, you may see images offered as "editorial use only." Do not take this label lightly. For if you are using the images in a way that is NOT editorial, you could find your business winds up receiving a copyright infringement demand from some of the to Plaintiff photo rights firms (ex. SRIP, Higbee and, Levin). Moreover, if you are using a celebrity image for marketing or advertising purposes, you might receive notice of a right of publicity lawsuit. In California, ROP exists in common law and in statutory form (Civil Code 3344), and under the statute the prevailing party can recover their attorney fees.
This blog talks about the "grey area" in what actually constitutes "editorial." I recently called one company and was told "we cannot give legal advice." I then asked for a list of known acceptable uses for editorial images. Again, they would not respond. This is what you may face when deciding how to use the image. My key advice is, when in doubt, don't use the image.
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Here are some of the major players in photo image online licensing and you can see what their terms of service look like in regard to these "public figure" type images. The key is they want you to use it for "editorial purposes" so that they are not aiding and abetting a right of publicity violation, plus, they do not have the rights to the name, image, and likeness of the celebrity.
Here their licensing use agreement notes:
No Unlawful Use. You may not use content in a pornographic, defamatory or other unlawful manner, to promote violence or hatred, or in violation of any applicable regulations or industry codes.
No Commercial Use of "Editorial Use Only" Content. You may not use content marked "editorial use only" for any commercial, promotional, advertorial, endorsement, advertising, gambling/betting/gaming uses or merchandising purpose. This type of content is not model or property released and is primarily intended to be used for editorial purposes, meaning descriptive purposes such as news reporting and discussion of current events or other human interest topics (for example, in a blog, textbook, newspaper or magazine article).
Their site also says this about modifying editorial images:
In relation to all Licenses:
- subject to Clause 6.5, you may alter, crop or manipulate the Content as follows:
- when used in a news or editorial context, you may only crop or otherwise edit the Content for technical quality purposes, provided that the editorial integrity of the Content is not compromised, and the truth of the Content is maintained. The Content when used in a news or editorial context may not, under any circumstances, be otherwise altered;
- Content depicting in copyright artwork may be cropped or otherwise edited for technical quality purposes only, provided that the original context and setting of the Content is not altered; and
- subject to Clauses 188.8.131.52 and 184.108.40.206, you may alter, crop, manipulate and create derivative works from the Content;
Here is their license agreement for editorial images:
AN EDITORIAL LICENSE grants you the right to make a single, editorial use of an item of Editorial content, which single use may be distributed worldwide, in perpetuity.
A "single use" for the purposes of this license permits the use of Editorial content in a single context (i.e., a news story, blog post, page of a publication) a single time, provided you shall have the right to distribute that use in-context across unlimited mediums and distribution channels. For example, the use of Editorial content to illustrate a printed article, maybe reused on a blog, on social media, etc., provided it is in-context to the original printed article. Any use not in-context to the original printed article would require an additional license.
An "editorial use" for the purposes of this license shall be a use made for descriptive purposes in a context that is newsworthy or of human interest and expressly excludes commercial uses such as advertising or merchandising.
Any use of Editorial Content licensed hereunder is further subject to those express restrictions set forth in Part I, Section 4 (prohibiting any use distributed via broadcast/cable/OTT, on publication covers, and in print runs in excess of 500,000) as well as any “special restrictions” (e.g., geographical or industry-specific usage restrictions) indicated on the image detail page and/or included in the metadata attached to an item of Editorial Content.
All Editorial content shall be deemed "Editorial Use Only" for the purposes of this TOS.
Not all Editorial content is available for license from the Shutterstock website, nor may it be available from all subscriptions. You understand that the Editorial content available for license can change at any time and you shall have no right to demand to license any particular item of Editorial content. If you want to license any Editorial content not available for license from the website, please contact Customer Service. (Phone: Inside US 1-866-663-3954, Outside US 1-646-419-4452 Email: Customer Support)
Their site also notes:
"What Does “Editorial Use Only” Mean? This question comes up quite often. Images that are marked as “editorial use only” are ones that have not been released for commercial use and have also been taken without the consent of the individuals in the photo. In the design scenario above, you would not be able to use the “editorial use only” photo of the football players because you are promoting football uniforms and generating sales from the brochure. In addition, the players have not given their permission to be included in the photo."
Their site also discusses "commercial use:"
"What is "commercial use?" Commercial use is any promotion/advertising for a product or service that generates revenue. This applies to both direct or indirect use. Direct use could be in an advertisement for a product. Indirect use could be a social media post on a business page that promotes a holiday without specifically selling or promoting the business. Neither of these uses will be permitted if the image is marked as "Editorial Use Only."
They also note that commercial uses may be possible:
"Is there any way to use editorial images commercially? Editorial content is generally available for use only in non-commercial ways (news stories, magazine articles, documentaries, etc.). However, Shutterstock may be able to work with the contributor and any rights holders to acquire commercial use rights in certain cases. In select cases, Shutterstock offers Asset Assurance™. This provides additional indemnification alongside your commercial license to use editorial images in specific campaigns. Asset Assurance™ is subject to Shutterstock's legal review and approval. You can learn more here."
Sometimes, when copyright attorneys are trying to make a legal interpretation of what a word means, we may look to the popular dictionaries for guidance.
an article in a newspaper or other periodical or on a website presenting the opinion of the publisher, writer, or editor.
a statement broadcast on radio or television that presents the opinion of the owner, manager, or the like, of the program, station, or channel.
The consensus seems to be an opinion voiced in a newspaper or radio that provides commentary on a newsworthy event. Does this allow for use of the image in a YouTUbe video for mystery shows, sports highlight reels, or even for legal YouTube channels like mine which are a mix of teaching but also to generate legal leads? These are the questions that need to be answered by a competent legal professional before you engage in a risky use of the image, art, diagram, or illustration.
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