You are looking for a suitable photo to support your article, advertisement or brochure. You have found the perfect image or have had it made, but can you just put this photo on your website? And what about the portrait rights of the person portrayed?
Every organization uses images. Often photography, increasingly videos, and also illustrations, infographics, animations or hybrid forms of images. I have been working with images for 30 years and regularly advise companies on image strategy or choosing the right photo.
It is striking that photography is available everywhere these days. Before you could not get good photography without a professional photographer or a specialized photo agency, now it is just a matter of typing in Google and you will come across a beautiful image. But you can’t just use images on your own website. In this section you will read the most important terms and rules that you will have to deal with when you publish a photo.
Royalty free vs. rights managed
If you’re using photos from a stock photo agency, you’ll often come across these terms. Royalty free is often interpreted as ‘free’. That’s not right: royalty free means that you don’t have to purchase a separate license for each use.
Imagine: you start a campaign for your product on different channels, so you want to be visible on social media, in a print advertisement and you use Google Display. If you choose a royalty-free image, you only pay once for these applications. The disadvantage is that you can assume that the images are also used by other companies. So less exclusive.
Rights managed means that you do have to make separate agreements for each application. Different rates apply and you conclude agreements for use on social media, for print advertisements and for online banners, for example. You can do this on a non-exclusive basis – the photo can also be used by someone else – or you make agreements to use the photography exclusively for your brand.
Royalty free is often interpreted as ‘free’. That is not true.
If you do not handle the use of photography with care and, for example, violate the portrait rights of the people in a photo, you can be in huge legal trouble. portrait right In short, the right to prevent the publication of a photo on which you are recognisably depicted, in some cases.
We all have a right to privacy and therefore all have to do with portrait rights. It is a right that you can always invoke as a person portrayed, but which you are not always right about. That depends on various factors.
It is sometimes thought that before publishing a photo you always have to have permission from the person portrayed. That is not the case. For example, you can often just publish a photo of someone on the public road, as long as there is a news reason for the publication.
News gathering: freedom of the press often takes precedence over privacy
Think of Kasja Ollongren’s ‘function elsewhere’ photo, taken by ANP photographer Bart Maat. Even if someone is recognisably depicted and the photo has not been commissioned by the person portrayed, such a photo can be published in a newspaper.
In the case of news gathering, freedom of the press often takes precedence over privacy.
If someone invokes his portrait right, it must be determined on a case-by-case basis what the ‘reasonable interest’ of this person is. A trade-off must be made between freedom of information and violating someone’s portrait right. Because there are two conflicting fundamental rights here, namely the right to privacy and freedom of the press, it is often a judge who ultimately makes the decision. But in the case of news gathering, press freedom often takes precedence over privacy.
Editorial vs. commercial use
Different rules apply for each type of application. Before you start publishing or producing an image, it is important to determine whether you want to use a photo commercially or editorially. How you want to use the photo largely determines what you are allowed to do with the photo.
A photo that is used editorially is in a context that is related to current events or that primarily wants to inform. In this category, the image supports the text with which it is published. You mainly want to inform and explain. For editorial use, think of an article in a newspaper or magazine, a documentary or educational books. This is about sharing information. The article you are reading now also falls under editorial use.
How you want to use the photo largely determines what you are allowed to do with the photo.
In many cases, news gathering above individual interest
In editorial use, it is more often permitted to portray people without being asked to, because in many cases the importance of gathering news takes precedence over individual interests. Still, it is good to ask yourself: is it really necessary to convey my message to this person in a recognizable way? Be extra alert to showing minors on screen. Although there are no clear regulations, it is becoming less and less desirable to portray children in a recognizable way.
The moment you want to promote or sell something, you are dealing with commercial use. This category is very broad. An obvious example is the use of images in a campaign or an advertising brochure. In this case, the image is literally used to generate money or prestige.
But there are also examples that may be less obvious. For example, if a municipality wants to use a photo of someone in a brochure to promote the municipality among tourists, this also falls under commercial use. In this way, photos provide attention and income.
If you want to use someone’s portrait to gain money or prestige, clear agreements must be made with the person portrayed. You cannot make someone the face of your campaign or brand without being asked. A quitclaim agreement must be signed containing the agreements between all parties. For example, whether the person depicted in question receives compensation and where the image is all recorded or distributed.
You can arrange this yourself or choose a photo from the image bank of a stock photo agency, where you can often find photos where this has already been covered. In this situation you cannot just use the photo of Kasja Ollongren.
Usually you pay more for a photo that you want to use commercially than for a photo that you use editorially.
You don’t buy a photo, you pay to use a photo.
Besides the fact that you are dealing with everyone who is depicted in a photo, there is another party that you as an image user have to take into account: the photographer or the maker of the image. Where in some cases the portrayed person must give permission for publication, the maker of a photo must at all times give permission for the use of an image. The maker reverts to copyright as soon as there are uncertainties about this.
Close a license agreement directly with the creator of the image or purchase an image from a press or photo agency. In the latter case, the agency is responsible for all agreements made regarding copyrights. In a license agreement you put all the agreements made in black and white so that both parties know what can and cannot be done with the image.
So make sure that you have permission from the creator to use an image and that you correctly cite it as the source. If you make unlawful use of someone else’s image and thus infringe the rights of the maker, you run the risk that you will have to pay compensation, for example.
And note: you don’t buy a photo, you pay to use a photo. If you do not have permission from the maker or from the agency that represents the maker, you should not use the photo.
Don’t have the time or budget to have photos taken and do you need photography for a commercial publication? Then use a model released image from a stock photo agency. An image falls under this category as soon as portrait rights have been properly arranged. The people depicted on a model released photo have in that case given permission for its commercial use. This is done by means of the previously mentioned quitclaim. This includes all agreements that have been made.
Not sure if an image falls under this category or not sure if the quitclaim is clear enough? Be on the safe side and always check with an expert. For example, did you know that a photo in which someone’s face is not visible is not automatically a model released image? Someone is still recognizable from the back and that is why the portrait right still applies.
Make sure you sit well
Royalty free, rights managed, portrait rights, editorial use, commercial use, copyright and model released… So these are terms to keep in mind. Never forget that a good photo is always taken by a photographer and that the people in the photo also have rights. Then you’re fine.
Source: Frankwatching by www.frankwatching.com.
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