Clinton Campaign Learns the Perils of Stock Footage with the Red Phone Ad

Many of you probably saw news coverage of Hillary Clinton’s red phone ad over the past week.

Stock Footage Actress is Reluctant Participant in Clinton’s Red Phone Commercial

The ad focuses on Clinton’s claims that Barack Obama lacks the experience to serve as President. It shows a series of sleeping children and asks voters which candidate they would want to see answering a 3 a.m. emergency phone call to the White House. One of the sleeping children in the commercial is Casey Knowles.  The depiction of Knowles is from stock footage made eight years ago. Getty Images now owns the footage. 

It turns out Knowles is a staunch supporter of Barack Obama’s presidential candidacy.  Knowles has campaigned for the Obama campaign, has attended his rally, and served as a precinct captain for the Washington caucus. Knowles has laughingly suggested getting together with the Obama campaign to produce a counter ad.

The Downside of Stock Material Usage

There is nothing wrong with using properly licensed stock footage. Producers do it all the time. However, as I discuss in The Permission Seeker’s Guide Through the Legal Jungle and as the Clinton campaign has learned, using stock footage can carry some downsides:

No Exclusivity.  You normally don’t get exclusive use of the stock footage unless you pay a lot extra. Unless your license includes exclusive rights, the stock house can license the same foot­age to any other producer.  That means there’s nothing stopping the Obama campaign from using the same footage for a counter political ad – if it wanted to do so.

Model Consents The license granted by the stock house frequently includes only rights related to the copyright of the footage. However, use of the footage may trigger privacy, publicity, defamation, trademark and other issues.  Typically, the producer is on its own in resolving those issues.

Sometimes the license includes consents from people appearing in the footage. Sometimes it doesn’t. I suspect the stock footage used by the Clinton campaign came with model consents. Even so, Getty and other stock footage houses require extra steps if the footage is used in an advertising context. For example, if the image is used for the endorsement of a product or service or in connection with an unflattering or controversial subject, the Getty Images license requires the producer to include a statement that the person is a model and is used for illustrative purposes only.