By Reinhard Holzner
If you just want to purchase a picture or video license, you may not be too interested in the legal aspects of buying a license. However, it is very important to have some basic knowledge on the topic, as this will help you avoid dangerous pitfalls that can lead to litigation and costly compensation claims.
Content covered in this article:
- What is a model release?
- What is a property release?
- What are the questions you should ask yourself before purchasing an image or video?
- Why free stock image platforms are dangerous
- Editorial use – different concepts in different countries
- Do you have questions? Smint.io helps!
Basically, people have a right to their picture and thus also the right to determine whether and how their picture may be used for e.g. advertising purposes. Also creators or owners of intellectual or material property have a right to the property that they have created or that they own.
If you violate these rights by improperly using a picture or video, the responsibility always lies with the publisher, i.e. with you or your company. Regardless of whether you were aware of the infringement or not.
To protect yourself and your company from litigation and compensation claims, it is necessary to obtain approval from the respective rights holder for the respective use. Such approval is called a “release”.
A release is required in any case if an image or video is used for commercial purposes.
No approval is required for editorial use. However, strict requirements and restrictions are placed on the use for editorial purposes. More information about editorial use can be found below in the section Editorial use – different concepts in different countries.
What is a model release?
If a release relates to the rights of persons, this is referred to as “model release”.
A model release is a legal document that is usually signed by the person(s) depicted in a picture or video. The right holder thereby grants permission to publish the content for commercial purposes. Typically, a model release covers allowances and restrictions regarding the allowed use of the content and sometimes also compensation to be paid to the rights holder when using the content.
Example: Person from behind
The following image requires model approval. Why? It is not necessary for a person to look directly into the camera. A person always has a right to their picture.
What is a property release?
What types of property require a property release?
- Identifiable exterior or interior of private homes and buildings
- Properties that are covered by photography or videography policies like architectural monuments, museums, theatres, landmarks, stadiums, or concert venues
- Copyrighted works like works of art, books or maps
- Unique animals such as famous pets, racehorses, and zoo animals depending on the zoo’s photography or videography policy
- Brand marks, logos, or recognisable product shapes like cars, airplanes, toys, bottles, or luxury furniture require an so-called ”intellectual property (IP) release“
Freedom of panorama
An exception in the area of property releases is the so-called “freedom of panorama”.
Broadly speaking, freedom of panorama is the right to film or photograph buildings, sculptures, statutes and other copyrighted works that are permanently located in public spaces.
However, freedom of panorama is handled differently in different countries, which is why we advise caution in this regard. You can find out more about “Freedom of panorama” here.
Example: the Eiffel Tower
The Eiffel Tower is one well known example of an architectural monument that requires a property release only under certain circumstances. The tower itself is in the public domain and pictures and videos can be taken freely. However, the tower’s nighttime light show was added in 1985 and is protected under France’s copyright law as a work of art.
Therefore, anyone who would like to publish photos or videos of the night-lit Eiffel Tower requires prior permission from the Société d’Exploitation de la Tour Eiffel. Pictures or footage showing the unlit Eiffel Tower however do not require a property release.
What are the questions you should ask yourself before purchasing an image or video?
- Will the image or video be used for commercial or editorial purposes?
- Does the image or video show recognizable people, buildings, products, brand marks, etc.?
- Are there national regulations to be considered at the place(s) of publication?
- Is there license information present for the asset asserting the presence of a model release and/or property release?
- Does the stock content provider warrant for the correctness of the release information? Reputable providers will keep you harmless up to a reasonable limit in the event of claims for damages that are not your fault
Stock content providers usually provide release information as part of the asset metadata. In Smint.io, this metadata is then displayed directly next to the asset:
Alternatively, the release information is also available in the “License details”:
Why free stock image platforms are dangerous
But what about platforms that offer great imagery completely for free? Usually there is big letter offers that allow for unlimited commercial use, without any restrictions or worries. And the content seems to be perfect. Is there an excemption to the rules?
Well, in this case the devil is in the fine print. When studying the legal terms, it quickly becomes clear that those platforms do not take over any responsibility for model or property rights clearance, nor for clearance of any rights related to brands or artwork shown.
Last but not least, legal disclaimers will financially leave the unsuspecting downloader left alone in the rain, if any legal issues arise. So using free stock image platforms can quickly become a really expensive and time-consuming problem.
Editorial use – different concepts in different countries
Because of the complexity involved, editorial use is a fairly advanced topic. Editorial use is based on the fair use (fair dealing) exception of U.S and U.K. copyright laws where copyrighted work can be used without authorization for purposes like news reporting, criticism, or education. Though, the picture or footage must have been taken in a public place and not through intrusion of privacy.
In the UK the list of exceptions is exhaustive, in US copyright law however, there is no clearly defined boundary between the commercial and editorial use and thus there is always legal risk associated with editorial us of copyrighted material. Also, content that is marked for editorial use, is typically licensed without any warranties, even if used just for editorial purposes.
Here is a great article about the fair use definition differences in the US and UK by the Design and Artists Copyright Society (DACS).
In most EU countries, the exceptions for unauthorized publications are clearly defined and while there are differences between them, most of them follow the logic of German copyright law.
In Germany, these exceptions (§23 KunstUrhG) relate to the people depicted such as politicians, famous artists, business leaders etc.…, as well as to the context of creation.
The exception also applies to people who just happen to be standing next to a building, in the landscape or another motif, and people who take part in public gatherings, parades and the like.
Another exception applies to pictures or videos that do not represent commissioned work the publication of which serves the higher interest of art.
However, these exceptions are mitigated by any legitimate interest of the person depicted or, if he / she died, his descendants. Hence, even if the rules are clearly defined, it is always important to consider such potential legitimate interests before publishing.
Do you have questions? Smint.io helps!
As you can see, questions of a copyright nature are not always easy and clear to answer. If you have any questions about a picture or video, or if you need legal information, please use our legal advice service.