Though some editorial uses are permissible, photographs of many products and locations cannot be used for commercial purposes without a release. Blanket releases for images of such subjects are almost impossible to obtain. It is sometimes possible to get a release for a very specific, clearly defined use, but not for an undefined “stock use.” Therefore, if the stock photographer’s goal is to license images as stock, he or she should avoid wasting time photographing such subject matter.
Out of ignorance, some customers make commercial uses of images of such products and locations, but the photographer runs the risk of legal action if the product maker or property owner spots the use. In addition, most agencies will not accept images featuring questionable content, unless a release has been provided or all identifying marks have been removed and the product looks generic.
This has some interesting implications.
For example, Apple’s Macintosh logo is a registered trademark. Thus, most agencies will not accept an image of someone using a Mac, unless the logo has been airbrushed out. However, the shape of an Apple computer is so unique that it is hard to imagine that it will not be recognized even without the logo. In addition, art directors complain that airbrushed pictures look fake.
NASCAR racing cars are similarly distinctive, and the promotional value of anything related to NASCAR is worth a great deal of money. Thus, car owners aggressively protect their rights. Getting permission to use the images for stock is impossible. One photographer solved this problem by building miniature racecars that looked realistic and photographing them in ways that looked like race day.
In September, iStockphoto announced the introduction of its technical wiki, which allows photographers to search products and locations to determine if a release is required.
BigStockPhoto has just released its problem keyword and subject list to assist photographers in staying clear of trademark, copyright and intellectual property infringements. The listed items should generally not be made a key part of a photograph or artwork.
At BigStockPhoto, these items can be marked for editorial use only, if they are newsworthy, which the company defines as “editorial shots such as celebrities at an event, an auto show, or a special event. However, even something mundane such as a person using a Blackberry can be newsworthy if it becomes a news topic, or an Adidas store could be OK, and used if the Adidas company was in the news.” However, it is important to keep in mind that just because an image is newsworthy, the use made of it will not necessarily be editorial.