Stock Images Are Great! – Usually
I often recommend to my clients that they use stock images and stock footage as a means to reduce the licensing headaches, legal risks, and costs associated with using someone else’s material. But there are definitely right ways and wrong ways to handle stock materials. This situation with Getty Image illustrates many of the wrong ways.
HIV Ad Results in Lawsuit against Getty Images
In April 2013, an ad featuring a picture of Avril Nolan and advocating rights for people who are HIV-positive appeared in a New York newspaper. The quarter-page color ad, with the words “I am positive (+),” and, “I have rights” printed next to Nolan’s picture, implied that Nolan is HIV positive. She is not. You can see the ad in the New York Post article.
The New York Division of Human Rights, which placed the ad, obtained Nolan’s picture from Getty Images. Getty Images obtained the picture from photographer Jena Cumbo, described as an acquaintance of Nolan, who took the picture.
Avril Nolan has filed a lawsuit against stock image company, Getty Images. The New York Post article suggests that a lawsuit against the New York Division of Human Rights may also be forthcoming.
Stock Image Mistakes Made by Photographer, Licensee, and Stock Image Company
Let's assume, just for the purpose of this blog posting. that all the facts alleged in Nolan’s complaint are true. That means all the parties in the distribution chain resulting in the appearance of Nolan’s image in this ad made mistakes:
The Photographer. Nolan claimed she never signed a release for the picture taken by Cumbo and Cumbo’s interview with the New York Post doesn’t contradict that assertion. When selling images of recognizable people to a stock image house, make sure you have a release.
New York Division of Human Rights. Even if Nolan did sign a release for her picture, the release she signed probably doesn’t cover use in this particular ad. Releases signed by people whose images wind up in stock image libraries often do not cover a use dealing with sensitive issues – such as the HIV virus and AIDS. Before using anyone’s image in this particular ad, the NY Division of Human Rights should have determined the existence of a release and then either obtained additional permissions from the person and/or used a disclaimer with the image.
Getty Images. The license granted by the stock house frequently includes only rights related to the copyright of the image and leaves the licensee on its own to clear any additional rights triggered by use of the image (e.g., privacy, publicity, defamation). Nevertheless, when licensing images of recognizable people for use in commercial advertisements, it’s definitely in the direct interest of the stock house to verify the existence of a personal release or to make sure the licensee understands the need to obtain those rights on its own.
