Wednesday, 24 November 2010

When can you use a photo featuring people or businesses commercially?

In my previous post I highlighted how a small business might prefer to use this image:





rather than this one.....





But if the former type of image is not available from the any Royalty Free ("RF") image libraries and if that's because the image is not suitable for commercial use (in the eyes of those libraries) then how could your small business possibly use this image?

What you have to remember is that RF suppliers know they are in the main selling to people who do not want to know about image licensing. But whether they want to know it or not, when someone buys an RF image they are signing up to a huge agreement that allows the RF image library, model or photographer to sue them if the image is misused. If you don't believe me read an RF license agreement!

The issue of releases

As a user of a Rights Managed image, you have to pay more attention to what's going on. So what is the starting point for the business that wants to use this image?
  1. Is there a model release? Does the seller of the image vouch for the people in the photo giving written permission for the photo to be used commercially? If so, life is easier. More people can use the image in more ways. But there is no model release.
  2. Is there a property release? Does the seller of the image vouch for the businesses in the photo giving written permission for their names and logos to be used? Again, if this is the case, life is easier. But there is no property release.
Basic stuff. So with no releases let's now think about one uncomplicated way in which the image can be used - editorially. Indeed the expectation of me, the photographer, is that this is how the image is most likely to finish up being used.What does editorially mean? Here's examples:
  • In a newspaper or magazine - to illustrate an article
  • On television news 
  • In a blog on the internet 
Just like for a commercial use, payment has to be made for a license to use the image in these ways. Yes - that includes in a blog.

So how about commercial use? Advertising? On a website?

If I have to generalise, the answer is 'no' - but I don't like generalising because that is what the RF libraries have to do and there are exceptions and if as a business you really want to use the image then there will be ways if you are the right business using the image in the right way.

First of all, it's normally pointless approaching the photographer. How you use the image is about you and the content of the image.

Let's assume that you are a business in the Lanes area of Brighton, not competing in any way with the businesses whose signs feature in the image. There are two approaches you can adopt:
  1. Go ahead and use the image. The hotch potch of commercial signs implies nothing. The way in which you use the image should mean nothing too other than "Come to Brighton Lanes, see our shops, soak up the atmosphere" - because that is the way in which you intend to use it. (I'll deal with the people below).
  2. Pop around to your neighbours and let them know what you are doing, hoping to get more people to your business, to the lanes, to use their businesses too. The nature of people having a bad day means that this can sometimes go wrong but at least you've tried. Now, I'm not a lawyer (I'll repeat that I'M NOT A LAWYER!) but even if they say no then I think you could use the image anyway because if they are stupid enough to take you to court you'd win, but really it's not worth the hassle because you are being stupid if you then brazenly provoke a confrontation!
For this image, I'd favour approach 1. The fact is that the businesses featured would probably never know about the image and if they do see it they'd think nothing of it. If there was one business prominently featured over the others and the image was primarily a photo of that business rather than the street scene then it would be a different kettle of fish. Go and get permission!

So what about the people? It's important that the image - and the way you use it - is in the context of a photo of the Brighton Lanes rather than the people featured. You should not be selling a product that might suggest in any way that the people who are incidentally featured in the image support or are modelling for the product. Having considered the situation sensibly you again have two options:

  1. Go ahead and use the image. You may make the unsafe assumption that the people featured will never know anyway, but importantly if they do see the image then again they probably won't mind in the slightest. Of course you could be unlucky; but in UK law they anyway would be most unlikely to be able to claim damages. It's been tried - they are incidental to the scene and really what damage is being caused? Again, I am not a lawyer and you should consider the specifics of the situation. For example, if you happen to be a major UK retailer using this image in national advertising then the story may be different.
  2. Try and find the people and ask!
In all this use on a website or in a brochure is going to be probably less of an issue that use in an advertisement. In all this I come back to the words "Be sensible!".  Think about how reasonable people and businesses would act. What if it was you? Or your business?

If you want to be totally safe in life then use RF libraries. And don't drive a car or cross the road.

Conclusion

It is possible to use images with character rather than blandness. You do have to think about what you are doing but if you are blessed with common sense that should not be too taxing. And the photos may cost more, but you'll get over that when they start benefiting your business.

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