In the past few months I’ve seen images I’ve created used without permission for:
– Facebook graphics promoting a commercial company that I did not provide photos to
– Instagram posts tied in conjunction with a commercial company
– Website banner graphics without any form of credit
– Even a full page printed advertisement in a national magazine promoting a commercial company
Even yesterday I had a talent e-mail me a contract on behalf of a commercial company who wanted to use my images for their own purposes. Despite the fact that they were properly covering their bases by requesting permission through a written document; upon reading the contract, it stated:
“Exclusive, unlimited commercial print, commercial electronic, commercial web, and editorial use.”
What does this mean for myself and the talent?
1. We can no longer do anything really with the images. We’ve given away the “Exclusive” rights to them. Later in the contract it states that we guarantee that no other party can claim rights to the images.
2. Now the commercial company, which would have the rights to these images (if I were to sign this document) has the ability to use these images forever and profit as much as they can doing whatever they choose to with the photos. They can use them for commercial purposes (advertisements) in both print and online as well as using them for editorial purposes. Whatever they chose to – for unlimited time and unlimited uses.
And what would myself and the talent be compensated for the release of these images by the company?
Oh, wait, I’m sorry. They are willing to put a photo credit next to the photo (although the contract does not state that they are obligated to use the photo credit).
As a modeling talent, here are the basic principles you should know about the use of images and the rights to the images.
1. When you hire a photographer, you are not so much purchasing the photos as you are buying the rights to use the photos. Many photos will extend to their model clients the non-commercial and non-transferable rights to the images. Meaning you can use the photos to promote yourself and all things you do in your modeling career; but you will need to check with the photographer should you want to sell the images or should you want to transfer any rights to the images. Other photographers may not transfer as many rights and some will transfer much more. It is always important to have that conversation with photographers you choose to hire as to what rights you have to the images that you are hiring them for. The photographer owns the initial copyright unless they sign it away.
2. Commercial and editorial are two separate things. An editorial use is most easily defined as being in connection with a publication. Not an advertisement; but for example an image being used alongside an article in the magazine or newspaper. Commercial, on the other hand, is when an image is being used to promote a product or service in an advertising sense (online or print).
3. Every image has a subjective value which often times cannot be shared. I’ve personally sold the rights to images for a lot of money to one company (as the images was worth more to the company and the usage they were wanting demanded it) and sold similar images for less money (as the intended use was far less). Once an image is used in conjunction with a commercial brand it is very rare it can be used with another. Could you imagine Nike wanting to use the same image as Reebok for example?
Looking at the examples of images that were used for various commercial graphics and print advertisements. Were the images technically used illegally? Yes, they did violate copyright law and could be pursued for that.
However, I feel that oftentimes the best approach is to put out better information on the use of images so that my clients and those who subscribe to my blog or listen to my podcast are the ones in the know and can best approach situations when third parties wish to use the images that they are in. Always check with your photographer as to the rights of the images you have with them to make sure you are getting the most value and impact out of your photos.