Guide Through the Legal Jungle

Resource on Rights Clearance & Copyright. What’s New in the Updated & Expanded 2nd Edition

  THE PERMISSION SEEKER’S
GUIDE THROUGH THE LEGAL JUNGLE®
Clearing Copyrights, Trademarks and Other Rights for Entertainment and Media Productions

Second Edition, Updated & Expanded

(Read Complimentary Book Excerpt Here.)

The Permission Seeker’s Guide Through the Legal Jungle explains the rights clearance process and provides detailed guidance for the legal use of music, artwork, names, film clips, and other protected materials.

This Second Edition is completely updated for 2017 and includes new or expanded discussions on the following topics:

Quotes. When and how much can you quote from other people’s material? Considerations for when one may and may not quote books, movies, songs, etc. without permission

Wiretapping. When is it acceptable to record others’ activities, and when is such activity illegal wiretapping? Is it legal to photograph police activity? This topic relates to newsgathering techniques, recording of police by citizen reporters, and documentary productions.

Political and Cause Marketing. A new chapter highlights the rights clearance issues that frequently arise during political campaign season.

Fan Fiction. Fan fiction borrows heavily from existing books, movies, television programs, and other creative works. When is it okay to write, produce, and publish fan fiction?

Videogames. How can you use real people and trademarks in videogames and other software applications? There have recently been several lawsuits against videogame producers for the unauthorized use of real people’s images and trademarks in their games.

Tattoos as Protectable Art. After tattoo artists filed lawsuits against productions depicting real people who are tattooed with the tattoos designed by those artist, using subjects with tattoos has become a concern for filmmakers, photographers, videogame companies, and producers of other creative media.

Graffiti As Protectable Art. To what extent can a producer incorporate graffiti into his work? While there are special circumstances surrounding the copyrightability of graffiti, if the graffiti is copyright-protected, its use is subject to the same restrictions as any other copyrighted work.

Fonts. While fonts themselves are not copyrightable, the software that generates fonts and typefaces can be copyrightable. There might be restrictions on or additional payment requirements for certain uses such as ebooks, websites, and television or film credits.

. . . AND OF COURSE MORE

Review the full table of contents and read an excerpt of the Expanded & Updated Second Edition of the Permission Seeker’s Guide Through the Legal Jungle at www.guidethroughthelegaljungle.com/permission-excerpt.pdf

MORE DETAILS. Authored by Joy R. Butler, Published by Sashay Communications, 978-0-9672940-7-0, 450 pages, paperback, trim size 6 x 9, retail price $29.95. Available at www.GuideThroughtheLegalJungle.com, and from retail and online stores including amazon.com and barnesandnoble.com

Obtaining Personal Consent and Release via Placard Notice. Does It Really Work?

Your organization is hosting a festival, a seminar, a book-signing, a musical concert – or other event that will attract attendees. You want to capture images of people enjoying your event – and then share those images in news reports about the event’s success, on social media, and in promotional pieces advertising next year’s event.

Do You Need a Personal Consent from Each Person Depicted?

The need to obtain consent varies with the circumstances and with each state’s law. For this blog posting, suffice it to say that while there are First Amendment and other circumstances in which consent is not required to use a person’s image, there is rarely any downside to having the person’s consent.

How Do You Obtain Consent from All Attendees?

Since having consent is preferable, how do you logistically obtain a release from the dozens, hundreds – maybe even thousands of people at your event? A posted notice might function as a practical and effective method of obtaining those consents. Pictured at the opening of this blog post is one such notice recently used at a community festival.

Is Consent Via Posted Notice Enforceable?

Personal consents and releases come in various forms - written, verbal, explicit, and implied. Each form can potentially be valid and enforceable. The “consent via placard notice” method takes advantage of the implied approach to personal consent. When a person realizes he is being photographed or filmed for a particular purpose and makes no objection, the person has provided implied consent to his depiction for that purpose.

While implied consent can be enforceable, it is not appropriate for every use and every situation. Here are some general tactics organizations can use for maximizing the effectiveness of consent via placard notice:

Determine whether Attendees Have the Capacity to Consent. For example, minors do not have the capacity to give consent. Any consent from a minor requires the consent of the minor’s parent or guardian. If your event is likely to attract many unaccompanied minors (e.g., an event attracting teenagers), consent via placard might not produce optimal results.

Give People Reasonable Opportunity to Decline. This means people need to see the notice. Hence, place the notice in a conspicuous location to maximize chances people will see it as they enter the venue.

Also, for the consent to be enforceable, people should have a reasonable opportunity to decline participation. If the person has paid $200 for a ticket to a show and declining to enter beyond the posted notice means not seeing the show and forfeiting the $200, the person has an argument that the consent is not valid.

Use Images in an Incidental Manner; Not a Featured Manner. Ideally, you will use the images in a manner that focuses on the event and in which the people depicted function as background – incidentally or casually captured on camera as part of covering the event. Your use cannot be a disguised advertisement for the sale of a product or service. You might seek additional legal review to evaluate the risk of a defamation claim if the image depicts the subject in a manner that might be embarrassing.

A case involving Ohio news anchor Catherine Bosley illustrates when use is featured and commercial rather than incidental and when implicit consent is insufficient. While on vacation in Florida, Bosley participated in a wet-t-shirt contest. Subsequently, images of Bosley at the event and in various stages of dress along with her name were used on the cover of a WildWetT video, in the members-only portion of an adult entertainment website, and in direct promotion for other sexually-related goods. The defendants claimed to have the anchor’s consent for use of the images since written notices informing the wet-t-shirt contestants of the future commercial use of their images had been placed around the dressing room, stage, entrances, and exits of the event. The court ruled that the defendants’ use was a commercial use and, thus, under Florida law, required at a minimum Bosley’s explicit verbal consent in order to be valid. (The case is Bosley v. WildWetT.com, 310 F. Supp.2d 914 (N.D. Oh. 2004)).

Featuring Someone’s Property in a Commercial Advertisement

If someone features my property in a commercial advertisement without my permission, do I have a legal claim against the person?

That’s the query an acquaintance recently posed to me. Although my acquaintance’s query concerned real property, I’ll address both real property and personal property in this blog posting.

As a short answer, the depiction of someone’s real or personal property in an advertisement will not generate a cause of action in most situations. Those few situations in which it would generate a cause of action give us an opportunity to meander among a few principles of privacy, publicity, copyright, and trademark law:

Trespass/Privacy Invasion.  If someone enters your private property without your consent in order to capture an image of your property, you might have an invasion of privacy claim. However, as long as they do not trespass or use deception, people seeking photographs have wide latitude to take photos in public places. It is legally permissible to photograph private property while standing on public property. It is also legally permissible to use a device such as a zoom lens to photograph action or property within public view.

Right of Publicity. Your right of publicity is your right to commercialize or profit from your persona. The right of publicity is why no one may use the name, image, voice or other identifying characteristic of any famous person – or even non-famous person – in a commercial context without permission. Featuring your property in a commercial advertisement could trigger a right of publicity claim but only if the property is identifiable with you. While most items of property are not immediately identifiable with a specific person, some are. For example, does a single white sequined glove remind you of any particular recording artist?

Copyright. You might have a claim for copyright infringement if the featured property – a sculpture, a painting, other artistic items that can be depicted, etc. - qualifies for copyright protection and you are the copyright owner. Ownership of a copyrighted work is not the same thing as ownership of the copyright in the work.

While a few buildings and structures qualify for copyright protection, such copyright protection is more limited and does not prohibit others from producing and distributing two-dimensional reproductions (e.g., a photograph) of the building.

Trademark. A few buildings and structures - such as McDonald’s Golden Arches and the Guggenheim Museum in New York – qualify for trademark protection. Featuring such a building or featuring a brand-name product in an advertisement can generate a successful trademark infringement claim if the depiction tarnishes or draws on the goodwill associated with the building/product, or misleads people to believe that the trademark owner has endorsed or sponsored the commercial advertisement.

Again, any available trademark claim is your claim only if you are the trademark owner. If someone features your Louis Vuitton handbag in an advertisement, that is Louis Vuitton’s trademark claim and not your trademark claim.

Legal Issues for Avatars and Virtual Reality. Part Two. Minimizing Risk.

This two-part blog posting provides a summary of my Avatars and Virtual Reality presentation at the Summit on the Hill event organized by the 2016 DC Independent Film Festival and hosted by the Congressional Entertainment Industries Caucus. In Part One, I discussed the relevance and importance of right of publicity and other rights clearance considerations. In this Part Two, I offer suggestions for minimizing legal risks when producing and distributing creative materials containing avatars based on real people.

Getting Permission Is the Safest Route

The safest approach is to get permission from the person you want to depict as an avatar. With a written agreement, you can resolve issues involving publicity rights, privacy rights, and defamation.

Caveat. If you go the permission route, respect the parameters of the agreement. For the Band Hero video game, Activision Publishing had the permission and participation of members of the band, No Doubt. The No Doubt band members even participated in a full-day motion capture photography session. However, Activision went beyond the scope of the agreement by allowing video game players to unlock band member avatars and manipulate the avatars to sing songs by other musical artists. Even though they signed a permission agreement, the No Doubt band members pursued Activision for right of publicity and other claims in a lawsuit that survived Activision’s anti-SLAPP dismissal attempts.

If You Don’t Have Permission

If you use the avatar without the person’s permission, avoid using any indicia of the person to market or advertise the film, game, etc. There may be some exceptions to this no-advertising-use principle if you determine that the person is deceased and has no post-mortem publicity rights. Examples of deceased famous people who have been found to have no post-mortem publicity rights include Albert Einstein and Marilyn Monroe.

You can also decrease potential risks if the depiction is a parody, is newsworthy, or is a small component of the overall work. Of course, structuring the depiction in this manner might not be possible for all projects.

Selection of Underlying Materials

Use caution when collecting underlying materials for construction of your avatars and virtual world.

Materials Posted Online. Hopefully, everyone knows that just because material is posted online does not mean the material is available for use by anyone and in any manner.

Creative Commons Materials. While Creative Commons materials are ostensibly free, using them carries considerable risk that can generate significant costs.

Stock House Materials. I favor and encourage the use of stock materials as a less expensive, less risky, and administratively easier manner in which to obtain creative elements to incorporate into your work. However, even the use of stock materials is not always risk free. As I have previously blogged, just because you license the material from a reputable stock house does not mean your specific use is acceptable. 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 determine if any other rights are needed. Some stock houses restrict how stock materials may be used with computer software and games including virtual worlds and simulation and training environments. Hence, it is crucial to read and understand the stock house’s license agreement.

More Lessons on How Not to Use Stock Images. Improper Use of Stock Image in HIV Ad Results in Successful Lawsuits against Getty Images and Advertiser.

Stock images, stock footage, and stock music are fantastic resources when you need material for your website, advertisements, video productions, and other creative projects. Using stock materials can lower costs, legal risks, and administrative work – if used properly. Proper use is key as there are definitely incorrect and risky methods of using stock materials.

HIV Ad Results in Lawsuits against Getty Images and Advertiser

In April 2013, the New York State Division of Human Rights released an advertisement advocating rights for people who are HIV-positive. The ad featured a picture of Avril Nolan with the caption “I am positive (+),” and, “I have rights”. You can see the ad in the New York Post coverage.

However, Nolan is not HIV positive and did not consent to the use of her image in the ad. The New York State Division of Human Rights obtained Nolan’s picture from Getty Images, a well-known stock image company. Getty Images obtained the picture from photographer Jena Cumbo, described as an acquaintance of Nolan, who took the picture.

The incident resulted in Nolan filing lawsuits against both the New York State Division of Human Rights and Getty Images. I initially blogged about this incident in 2013. Since there has been some resolution to the legal proceedings, I thought it worth re-visiting the mistakes made by the New York State Division of Human Rights, by Getty Images, and by the photographer.

The New York State Division of Human Rights’ Mistakes:

Kudos to the New York State Division of Human Rights (NYSDHR) for licensing the image from a reputable stock image company rather than allowing its staff to meander the internet in search of images to cut and paste. (Some companies do that for their social media posting needs and it often does not work out well.)

NYSDHR Mistake One. Unfortunately, no one at NYSDHR read the Getty Images license agreement. The NYSDHR staff person who made the online purchase clicked through the license agreement while downloading the Nolan image but did not read the license agreement which contained the following provisions:

"2.6 Pornographic, defamatory, or otherwise unlawful use of [stock images] is strictly prohibited, whether directly or in context or juxtaposition with other material or subject matter. (emphasis added)

2.7 “If any [stock image] featuring a model or property is used in connection with a subject that would be unflattering or controversial to a reasonable person”, the stock image must be accompanied by a disclaimer indicating “that: (i) the [stock image] is being used for illustrative purposes only; and (ii) any person depicted in the [stock image] . . . , is a model."

NYSDHR Mistake Two. Several NYSDHR staff people reviewed and/or participated in preparation of the ad. Yet, none of them considered the implications of using the picture of a woman who’s not HIV positive as the focal point of an “I’m HIV-positive” advertisement.

The Outcome for NYSDHR. Those actions constituted negligence by NYSDHR. As a result of negligently labeling Nolan as HIV positive in its advertisement, NYSDHR was found liable for defamation and for violation of Nolan’s privacy rights in a summary judgment motion (Nolan v. New York, 2015 NY Slip Op 32023(U) (Court of Claims, Oct. 18, 2015). The Court of Claims left the issue of NYSDHR’s damages for a subsequent trial.

Getty Images’ Mistakes:

Getty Images’ Mistake One. During the purchase process, Getty incorrectly informed NYSDHR that Nolan had signed a model release and that the image was available for commercial use.

Getty Images’ Missed Opportunity. During the purchase process, Getty learned that NYSDHR would use Nolan’s image for advertising. However, Getty did not make any inquiries regarding the advertisement’s subject matter. Since not all purchasers are going to read Getty Image’s eight-page licensing agreement, the purchase process presents a good opportunity for Getty Images to highlight the additional steps required prior to using stock images in an ad about a sensitive subject.

The Outcome for Getty Images. Nolan sued Getty Images for using her image for trade or advertising purposes absent any written consent in violation of New York Civil Rights Law §§ 50 and 51 (the state’s privacy laws). Getty tried very hard to get Nolan’s complaint dismissed by pushing any liability onto NYSDHR and the photographer. Getty’s arguments included the following:

• Getty had a First Amendment right to display Nolan’s image in its database and license the image to the press;
• Neither NY Civil Rights Law nor the First Amendment required Getty to investigate the existence or validity of every image release within its database
• Nolan was a model and such status negated her privacy claim.

The court disagreed with Getty finding that Nolan had a valid claim against Getty for placing her image in the Getty catalogue, especially where that photograph is ultimately used in an advertisement in a manner that created a false impression about Nolan. According to the court there were many factors that needed to be resolved via summary judgment or trial:

• whether Nolan is a model,
• whether Nolan signed a written release,
• whether Civil Rights Law §§ 50 and 51 required Getty to investigate the existence of a release signed by Nolan,
• whether the First Amendment protects Getty's exploitation of Nolan's image without Nolan's written permission,
• whether Getty's inclusion of the image in its database of images available for licensing qualifies as use of the image for either advertising or trade purposes, and
• whether Getty can shift to NYSDHR and the photographer the burden of obtaining Nolan's written consent.

Getty decided not to pursue answers to those questions and settled with Nolan in January 2015.

The Photographer’s Mistakes:

Nolan posed for the photograph in May 2011 in connection with an article in Soma Magazine about New Yorkers interested in music. Nolan did not receive payment for the photograph, did not sign a written consent form, and did not grant permission for use of the photo for any purposes other than the Soma Magazine article. The photographer provided that image to Getty for inclusion in its stock image database.

According to Getty, as part of that transfer, the photographer signed Getty Image’s contributor agreement. I just took a look at Getty Images contributor agreement and it does require that those submitting images to Getty obtain valid model and property releases where necessary in accordance with the Submission Requirements. It took a lot of clicking through other areas of Getty Images website to determine when those Submission Requirements deem it necessary to obtain model and property releases.

Ms. Nolan did not sue the photographer. The photographer likely does not have the deepest pockets of the parties involved in this affair. She and Ms. Nolan might also be friends or at least social or professional acquaintances. While it appears that the photographer escaped unscathed, she likely did not strengthen her relationship with Getty Images and Getty Images might pursue her for reimbursement of any settlement feeds paid to Nolan. The Getty Images contribution agreement does include indemnification provisions.

Unauthorized Product Placement Questions Raised by Lego/Artist Conflict

Lego blocks – a child’s toy – has stirred up a political, censorship, and product placement controversy.

Artist Ai Weiwei’s Upcoming Work

For an upcoming exhibit at the National Gallery of Victoria in Melbourne, the Chinese artist and dissident Ai Weiwei decided to build two works using Lego construction blocks. One work tentatively titled “Lego Room” is to consist of mosaic portraits of advocates for human rights and Internet freedom including controversial figures such as WikiLeaks founder Julian Assange. The second work is to be a new version of the artist’s 1995 photo triptych, “Dropping a Han Dynasty Urn.”

This is not the first Ai Wiewei exhibit based on Lego blocks. In 2014, he did an exhibit at San Francisco’s Alcatraz prison which work including Lego-block-based portraits of 176 prisoners.

Reaction by the Lego Group

Danish toymaker, The Lego Group, refused to fill the bulk order of several million blocks needed for Ai Weiwei’s project. A Lego Group spokesman, quoted in the New York Times, explained that the company rejected the order because the company “. . . refrain[s] — on a global level — from actively engaging in or endorsing the use of Lego bricks in projects or contexts of a political agenda.”

Rights Clearance Issues?

Questions abound as to whether the Lego Group’s non-political stance was in fact political and as to whether refusing to fill the bulk purchase is censorship. For me, as an attorney whose practice includes licensing issues, the conflict also interests me from a rights clearance and product appearance perspective.

The questions of whether one can incorporate brand-named products arise frequently. Products with brand names have a way of popping up – sometimes unexpectedly – in artwork, film, productions, advertisements, and other media. While conservative media producers eschew the risks from the unlicensed appearances of brand-name products in their works, several United States court rulings sanction the unauthorized appearance of a brand-name product in a production as long as the appearance does not

1. tarnish the product’s reputation,

2. siphon the goodwill associated with the product, or

3. mislead people to believe that the product manufacturer has endorsed or sponsored the production.

Courts are particularly willing to accept an unauthorized product placement when used for social commentary. Perhaps no company has learned this lesson better than Mattel, the maker of the iconic Barbie Doll. According to the courts, all the following are legally acceptable:

• Utah photographer, Thomas Forsythe, taking and displaying photos of Barbie Doll in various absurd and often sexualized positions in his “Food Chain Barbie” photo series;

• Artist Susanne Pitt re-selling Barbie Dolls after physically altering them and clothing them in sadomasochistic attire

• Danish band Aqua featuring Barbie Doll in a sexually risqué song titled Barbie Girl

In contrast, featuring iconic products and their logos in non-related advertisements without a license can have dire consequences.

Back to the Lego Blocks

One commenter compared the Lego Group’s withholding of blocks to the withholding of paint, pens, or a camera because one doesn’t like the painting, book, or film that will be created from that material. If one considers the Lego Group’s mission statement, as shared on its website, “to inspire and develop the builders of tomorrow”, the comparison has some validity.

On the other hand, there are distinctions between those Lego blocks and paint, pens, or film -when being used as the basis for art. Typically, when we view a painting, book, or film, we don’t necessarily know the brand of paint, pen, or film used for the work. In contrast, each Lego construction block carries the trademark, Lego, so Lego is front and center for visual works constructed with the blocks.

Meanwhile, Ai Weiwei’s social media posts and subsequent news coverage about the conflict have generated numerous offers from around the world of contributions of the toy blocks. Hence, it appears that the artist will get the Lego blocks – as well as some “you just can’t buy that kind of” publicity – for his upcoming art project.

Making Defamation Disappear: Turning Libelous Statements into Libel-Free Statements

What Is Defamation?

You defame someone when you make a false statement about the person and the statement harms the person’s reputation. The defamatory statement is libel if written and slander if spoken.

Reducing the Risk of Defamation

To be defamatory, the statement must be false. A truthful statement - even if unflattering - is not defamatory. Therefore, even when making controversial or potentially offensive statements, you can reduce the risk of a libel claim by focusing on the raw facts.

When doing a full pre-publication or libel review (also called vetting) of an article, book or script that is an exposé, I make word and editing suggestions designed to make the piece a more objective reporting of events and, thus, less likely to be libelous.

Here are illustrative examples of word selection changes that reduce libel risk:

DO NOT refer to John as Nick’s accomplice in an activity that did not result in a criminal arrest, charge, or conviction. INSTEAD refer to John as working with Nick on the activity.

DO NOT say John sabotaged the process (if John’s actions are not criminally or civilly actionable). INSTEAD say John opposed the process by {description of John’s actions}.

DO NOT say John misrepresented the process. INSTEAD say John misstated the process or John made an inaccurate statement {followed by a factual explanation of how John’s statement was inaccurate}.

DO NOT say John falsified claims. INSTEAD, say John made claims that did not withstand scrutiny.

DO NOT refer to a blog as a hate blog. INSTEAD, refer to the blog as a blog that is critical of {subject}.

DO NOT say Attorney Smith’s argument to the District Court begins with a list of poorly researched items accusing . . . INSTEAD, say In trying to convince the court, Attorney Smith used a list of items that were inaccurate or used out of context.

DO NOT refer to Mr. Smith’s years of stonewalling INSTEAD, refer to Mr. Smith’s delays in sharing the requested information.

How a Rights Clearance Company Differs from a Rights Clearance Lawyer

What is Rights Clearance?

Clearing rights means verifying that nothing in your book, film, artwork, advertisement, music, or other creative production is going to get you sued or halt distribution of your work. Other names for the rights clearance process include licensing, getting permission, and media clearance. Find a more complete definition of rights clearance here. Learn five reasons why every creative producer should conduct rights clearance here.

To conduct rights clearance, you might enlist the aid of a rights clearance house and/or a rights clearance attorney. While there might be some overlap, their functions are mostly distinct. Lawyers provide the legal analysis component of rights clearance. Rights clearance companies specialize in the hands-on aspect of clearing rights (e.g., tracking down and contacting rights owners to secure permissions). It is often more cost-effective for producers to retain a rights clearance house rather than an attorney for the hands-on aspects of clearing rights.

Services a Rights Clearance House Might Provide Include the Following:

• Review your television or film script for mentions of real people, locations, products, companies, organizations, or protected works; flag those mentions for legal review; and sometimes suggest fictional names to replace the real names (script clearance companies provide this service.)
• Research and suggest specific materials appropriate for your production (e.g., image researchers or picture researchers locate suitable photographs and visual images for your production)
• Identify and locate rights owners of the music, quotes, images, film clips, etc. you want to use in your production
• Contact the rights owner and request permission for you to use music, quotes, images, film clips, etc.in your production and negotiate the license fees for those permissions
• Research and prepare a report on the copyright history of a particular work. A lawyer can then use the copyright report to determine whether or not the work is still copyright-protected.
• Research the proposed title of your production and prepare a title report listing any other uses of that title. A lawyer can then use the title report to determine whether your proposed title is available for use on your production.

Questions a Rights Clearance Attorney Might Answer Include the Following:

• Whether you can rely on fair use when using quotes in your book or film
• Whether you must obtain permission before incorporating certain footage, images, film clips, real names, music and events into your documentary or parody film
• Whether your film or television production can include footage of individuals who have not signed personal releases
• Whether a particular work is in the public domain or is still protected by copyright
• Whether a television commercial complies with false advertising laws (i.e., Federal Trade Commission Act, FTC Guides Concerning the Use of Endorsements and Testimonials in Advertising)
• Whether a production includes statements or other materials that are libelous
• Whether a specific title is available for use for your film, television show, book, etc.

A rights clearance attorney will often be asked to provide opinion letters on all the above which producers might then use to acquire distribution and errors and omissions insurance

How Not to Use Stock Images. Lessons from Getty Image - HIV Ad Lawsuit.

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.

Do I Need Permission to Use that Picture?

In addition to being worth a thousand words, a picture can spawn numerous permissions issues. The use of a photo may trigger privacy, publicity, defamation, trademark and other issues – depending upon who appears in the image and how you intend to use it.

Multiple Permissions May Be Required

You may need to obtain permission from more than one person or organization before you can use a particular picture. For example, in addition to getting permission from the photographer who took a photo, you may also need permission from any people depicted in the photo; from the owner of any trademark appearing in the photo; and from the copyright owner of any painting, sculpture, or other artwork depicted in the photo.

Stock Images as an Easier Alternative

An easier option for photo permissions may be licensing stock images. Licensing stock images is becoming easier as more stock houses computerize the process, offer online catalogs, and issue licenses online. A downside to using stock images is that they may have been in many other projects and may have been seen many times before. Stock materials can generate other unexpected consequences. Consider the rather negative experience of Hillary Clinton during the 2008 presidential primary campaign when she used stock footage – a close cousin to stock images – in one of her political ads. Also, using stock images does not always negate the need to obtain additional permissions for people or objects depicted in the image.

The Permission Seeker’s Guide Through the Legal Jungle includes an extensive discussion on using materials from stock houses and getting permissions for images.