The stock photo industry is rapidly moving to the point where there are more photo subjects you can’t use for commercial purposes than those you can.
Everyone wants “iconic” photos that viewers will instantly identify with certain concepts, but there are property and trademark rights connected to many of these iconic subjects. A couple examples: New York Stock Exchange and Commercial Aircraft.
An image of the New York Stock Exchange immediately invokes the idea of U.S. business, commerce, wealth, finance, investment, the economy, NY City landmark, etc. Everyone involved in the financial investment industry would like to use an image of the NYSE from time to time. But, this location is private property and images of the trading floor cannot be used without permission. The NYSE does allow such images to be used for editorial purposes and by member companies for commercial uses, but non-member companies are not allowed to use images of the exchange floor in their literature.
It has generally been advised that it is OK to license commercial rights to exteriors of the NYSE because such images are shot from the public street. However, PACA and Getty Images differ on this point. PACA’s recommendations say it is OK, but Getty says you need a property release for both interiors and exteriors of the NYSE.
Pictures of commercial aircraft are used to represent transportation, travel, aircraft industry and people on the move. There are property and trademark rights involved here too. The general advice given when photographing this subject matter is that all logos and identifying marks should be air brushed out and removed, or the planes should be shot from angles that don’t identify the particular airline. This means that you end up seeing a lot of aircraft at sunset or sunrise so they are in silhouette, or the planes are shot from strange angles to avoid showing identifying marks.
This may solve the problem for the moment, and as far as I know there have been no major suits brought by airlines or manufacturers, but it does raise some interesting questions. First, is it sufficient just to strip out an airline’s name and logo, or is it necessary to remove all identifying marks? For example, many airlines have colored strips along the fuselage or around the nose. The airline’s name may not be visible, but anyone in the industry looking at these markings can immediately tell which airline owns the plane. Is that sufficient for a company to bring legal action if they don’t like the way an image was used?
In researching this article, I looked at the images of “commercial aircraft” on Getty’s site. Several things are of interest. Logos on the Hulton pictures had not been airbrushed out to meet the above standards. This protects the historical authenticity of the image, but is that a legal defense if the image is used today? And what happens when the 1990’s become historical, and there are no historically accurate images? In addition, it seemed that the standards were more lax for RF images than for those of the major RM brands. RF images often had markings (not logos) that would make it possible to identify the aircraft owner. It’s certainly possible that these RF suppliers had a property release from the aircraft owner, but I wouldn’t bet on it. In looking at the RM images it appears that the editing is much tighter when it comes to having property releases and much more restrictive than on the RF. (One would think that if anything it should be the other way around.)
Another point to consider is does anyone have a property release from Boeing or Airbus Industries for the use of any of these images? In looking at almost any angle of these aircraft the manufacturer can immediately be identified even if there are no markings. Does the manufacturer have any continued rights? One might think that since the airlines have paid millions of dollars to purchase these aircraft they own them and they control all the rights as to how the images can are used. Maybe. Maybe not.
With that thought, let me jump cars. I recently talked to a photographer who has an extensive file of images of classic cars from the first half of the 20th Century. These cars are currently owned by collectors, and the photographer has property releases from the current owners. An agency was interested in this subject matter, but when the images were finally presented the deal breaker was that the photographer did not have a property release from the car manufacturer. Of course, in nearly all cases the manufacturing company no longer exists so there is no way to get such a release.
While we’re talking about cars we know that a release from the current owner of the car is no more than a first step to getting valid property rights protection. It is the car manufacture that really controls how the image will be used. Car manufactures with unique logos and brand or model names such as Maseratti, Porche, Rolls Royce, Thunderbird, Mustang and Chevrolet are particularly aggressive about protecting their trademark rights by going after any unauthorized use. A property release from an owner of one of these vehicles won’t provide any protection. The fact that I haven’t listed other car manufacturers is no assurance of protection. They could change their policies tomorrow and that could impact on images, already created and in the files, that may be used sometime in the future.
While we’re on the subject of motor vehicles, I recently heard about photographer who took some pictures of man who builds custom cars of his own design. This man signed both a model and property release, but that wasn’t sufficient for one agency to accept and market the images. The agency was concerned that some of the parts used in building this car, such as a headlight, might be identifiable and that the parts manufacturers might sue. If you’re coming to the conclusion that nobody knows what the rules are your right on target.
Photographing Tourist Attractions
Photographing tourist attractions for stock is getting tougher also. More and more frequently photographers are being asked to supply property releases of the locations they photograph.
In Germany the railway company Deutsche Bahn has a copyright on their ICE train and this prevents anyone from using a picture of the train for any type of commercial purpose, even if the train is photographed from a public place as it rolls through the countryside. According to Stefan Hartmann of Visuell Deutsche Bahn’s right to restrict such uses was recently upheld in a German court. Even uses that would positively promote train travel are prohibited unless cleared with Deutshe Bahn first.
Other protected locations in Europe include the Pyramide of the Louvre in Paris and the Eiffel Tower at night (because of the rights of the company which installed the illumination). A bridge in Amsterdam is protected because of the rights of the architects and the London Underground sign is also protected.
Recently the German Bundesgerichtshof (Supreme Court) decided that the Hundertwasser House in Vienna, Austria is protected and that photos of it cannot be used in any commercial sense such as postcards, calendars, etc. without permission of the heirs of the family that built the house. It probably won’t be long until the owners of every tourist attraction get the idea that they are losing revenue if they don’t get a piece of the action every time a picture of their attraction is used.
An added complexity is that laws differ in various countries and photographers who travel from country to country may not be fully conversant with all the laws of the location they are photographing. In some places it may be legal to use pictures taken from a public vantage point, but in other countries it may not.
We’ve also heard that photographers who have taken pictures of Southern Antibellem architecture from public streets are finding it difficult to get these images accepted by agencies unless they can produce a property release. Such buildings are classic examples of “Americana,” but then much of what is identified as Americana would not be usable for commercial purposes without a release.
Everyone wants high concept, iconic pictures because such images tend to get used in a bold, upfront way and thus often command high dollars. But by definition a picture is iconic because it is instantly recognizable by a large segment of the population.
Figuring out where to get a release can be difficult. Recently a stock agent was trying to determine if there are any trademark or copyright restriction in using images of the Jardins of Andre Citroen in Paris. The park is not just a garden. It also has a number of major architectural buildings and sculptures located within it. Part of the stock photographer’s dilemma is in knowing what to waste time shooting and what to pass by.
For the photographer on the scene it is often very difficult to find where to go to properly request permission. But it is even more difficult for an agent to know where to get accurate information when a photographer brings in a set of images without a release, or any information about where to obtain one. The agent often knows very little about the location or what might be required in any particular situation.
Why Do People Sue?
In addition to sharing in the compensation, there are a variety of reasons why property owners want to be careful about protecting their rights. If the subject of the image is used as a trademark, the property owners can actually lose their trademark rights if they don’t show that they have aggressively pursued infringements of their trademark. They also don’t want others benefiting from the name and reputation they have gone to great expense to build, unless they are compensated in some manner.
Possibly more important is that most property owners don’t want an image used in any way that will reflect negatively on their business. The same is true of entertainers and sports personalities. To the degree possible, it is in their best interest not to support anything that reflects negatively on them, and with the exception of press freedoms, in most cases people have a right to protect themselves in this way.
For this reason, the more important the person or property, the more they want to carefully control each use of the image and can be very reluctant to grant an unrestricted right to make any use whatsoever of the image in the future. The challenge stock photographers and stock agents face is that at the time the image is shot, when it might be relatively easy to obtain a release, they have no idea of the context in which the image might eventually be used.
Take all this to its natural extension, and in the not too distant future, it may not be possible to make commercial use of any photo of a real situation without a full set of property and model releases for every conceivable thing in the photo. Since blanket property releases are often difficult to obtain photographers may decide that it is not worth their trouble to take photos of real situations. In the future, photographers who want to produce stock images that can be used commercially may be well advised to concentrate on creating totally fictitious and unreal situations that can be manufactured in the studio or in Photoshop. And be sure not to use any props that are products available for commercial purchase.
In many cases images of subjects where commercial use is risky can be used for editorial purposes. However, it is becoming increasingly difficult to find an agency that will accept images that are restricted to editorial usage alone and to mark them as such.
Books are also a gray area. Sometimes they are considered editorial, but in other cases they are commercial. If a book’s subject is newsworthy or of public interest the images inside and on the cover (if the cover relates to the inside material) is considered editorial. This would cover most travel books. If a book is fiction, anything on the cover needs a release.
Even when there is case law on the side of allowing certain usages the very fact that there has been some type of legal action may cause many agencies to shy away from accepting images on the subject. The Rock & Roll Hall of Fame is a good example. There was a law suit a few years ago where the R&RHF tried to enforce what it believed were its trademark rights to a representation of its building. After much legal back and forth the courts determined that an image of the building taken from a public street could be used for the commercial purpose of producing and selling a poster without the permission of the R&RHF. The court rejected R&RHF’s claim that their building was a trademark. Nevertheless, in one sense the R&RHF won. Now, most agencies won’t offer an image of the building for licensing. As one industry representative put it, “It’s not because they (the R&RHF) are right, it’s because they are a pain.” In other words, it’s not worth the potential revenue you might make from licensing rights to such images for the legal harassment you’re likely to have to go through.
How Much Risk Is Reasonable?
Some photographers argue that being in business involves taking risks and feel that in many cases the risks of a problem arising are so minimal that the risk should be accepted as a normal course of doing business. They can also point to many instances in the past where pictures of cars, airplanes and the NYSE have been used without having a property release, and with no legal action being brought against the photographer or anyone else.
On the other hand, stock agencies can point to individual cases that have been costly in legal fees and settlements. They want to do everything possible to avoid such problems in the future. It is certainly fair for large corporations to do everything they can to minimize their risks.
In one sense it is possible to understand the paranoia of the big corporation. Given their size, they are targets for law suits. They also carefully weigh the potential return from any given image against the risk. If there is the slightest chance that someone might decide to bring legal action it’s not worth the risk to handle the image. But that means many images legitimate customers would like to use will no longer be available.
Possible Solutions
There are some possible solutions to this release problem, but for the most part they are solutions the agents and middle men don’t like to contemplate.
One option is to license all images as unreleased, and make it a condition of the sale that the user must obtain all necessary clearances and take full responsibility if those clearances are not adequate. The user must indemnify the photographer and the agency if there is a claim for unauthorized use.
The larger companies don’t want to do this because it is not “user friendly”. But customers might prefer this option rather than not having access to images of the subject matter at all. A worse case is for the user to have the false sense that an image is released and cleared for any type of usage when, in fact, some aspects of the image may not be properly released.
Image sellers could provide a further service to the customer by providing contact information for the person authorized to sign a release. Unfortunately, I don’t know of any agency that is operating in this manner at the present time. Most prefer to either have a blanket release, or to not handle the picture.
One advantage for the property owner in providing a specific release for each use is that they know each case exactly what the use is going to be. Many property owners don’t like the idea of signing a blanket release because they are not sure they can anticipate all the ways the image might be used and the negative implications of each. On the other hand, there may be a number of uses they would freely grant so long as they clearly understood the limits being placed on the use. Asking a property owner to sign a blanket release that covers any future use whatsoever is likely to get a blanket NO.
Many business and entertainment personalities are reluctant to allow blanket use of images of themselves, even for certain editorial purposes, because some uses may be negative. Consequently, they are often unwilling to allow certain feature coverage of their activities unless it is clearly defined for one specific use, or they are assured that they have veto power over future uses.
A system that would allow the individual or property owner to either carefully define the uses of certain images that are authorized, or to retain veto power over any proposed use, might make it possible to offer a much broader selection of imagery for commercial use than is currently available.
Subjects Requiring Specific Clearance For Commercial Use
I have been asked for a “definitive list” of photographic subjects that it are risky to license for commercial use. Part of the problem as I’ve outlined above is that there is no way to produce such a list. It may be possible to produce a list of companies that have brought legal action in the past, and thus have a propensity in that direction, but there is no guarantee that in the future other totally unrelated companies won’t try to control the use of photos of their facilities and operations. These actions may be aimed at images that have already been produced and are already in the files.
The only thing we can say for sure is that there is a greater trend in this direction, and thus the lists are likely to get longer and more inclusive as we move forward.
Below, I’ve produced a list of properties and objects that combines the lists offered by Getty Images, PACA (Picture Archive Council of America) and includes a few additional subjects that various agencies and lawyers have passed on to me. This list is not intended to be complete. It simply itemizes situations where issues have been raised in the past. Given past problems, many sellers are likely to be very nervous about offering images of these subjects for sale. Thus, from a photographer’s point of view, it may not be productive to spend any time producing images of these subjects unless you have very specific guidance from your agency in advance, or can obtain a very comprehensive release.
Trademarks and Logos
Logos are the emblems of a company, and are protected by Trademark law, as well as by copyright. Generally these are two-dimensional graphics (such as the Nike “swoosh”) but certain distinctive three-dimensional objects (such as the Coca-Cola bottle) may also be Trademarks. Occasionally even a certain color scheme may be problematic in a certain context (such as the green and yellow of John Deere tractors.)
| Nike Swoosh |
| Coke bottle |
| i-Mac computer |
| Hershey's Kiss |
| Olympics Athletes, Logo and Torch |
| Pro Sports Teams and Insignias |
| Major League Sports |
| Nascar Images |
| Vehicles with recognizable designs |
| Jaguar, Porche, Lamborghini, Maserati, Daimler, Chrysler |
| Rolls Royce - car and hood ornament |
| Chevrolet - car and hood ornament |
| Mustang horse logo |
| Thunderbird logo |
| BMW |
| McDonald's Arches |
| Beverly Hills Sign |
| Hollywood Sign |
| Oscar Award Statue |
| Emmy and Grammy Trophies |
| John Deere Tractor - yellow & green colors |
| Igloo Cooler shape |
| Johnson's Baby Oil bottle |
| ReaLemon container |
| Taster's Choice Coffee Container |
| Michelob Beer Bottle |
| Duracell Battery design (copper top) |
| Crusie Ships - Logos or readily identifable appearances |
| River Boats - Delta Queen, The Mississippi, The Nachez |
| Disney Characters |
| Warner Bros. cartoon characters |
| Barbie - any Mattel products |
| Smokey Bear |
| Woodsy Owl |
| Mounties uniform (Royal Canadian Mounted Police) |
| Red Cross |
| Fire Wire Logo |
Buildings and Places
Photographs of private property, especially homes, require releases. This includes many famous and public buildings, unless they are part of a general overall skyline photo.
| New York Stock Exchange |
| The Pacific Exchange |
| The Mercantile Exchange |
| Commodities Futures Exchange |
| Chicago Borad of Trade |
| Disney's Epcot Center, Disney World, Disneyland |
| Lone Cypress at Pebble Beach, CA |
| Williamsburg - also re-enactment actors |
| Newport Mansions |
| Dartmouth College and tower |
| Rock & Roll Hall of Fame |
| Rockefeller Center - buildings & sculptures |
| Hollywood Walk of Stars |
| Chinese Theater |
| Mystic Marine Museum |
| Biltmore Estate |
| San Simeon in California |
| Busch Gardens |
| Sea World - Florida and California |
| Universal Studios |
| Coca Cola World |
| Cadillac Ranch - pink Cadillac's buried like Stonehenge |
| The Louvre & IM Pei's Pyramid |
| San Diego Zoo |
| Indy 500 Race |
| Eiffel Tower at night (lighting design copyrighted) |
| The Grand Ole Opry |
| Swan Boats in Boston's public gardens |
| Flatiron Building in New York |
| Chrysler Building in New York |
| Empire State Building (only as part of skyline) |
| New Orleans Superdome |
| TransAmerica Building , San Francisco |
| Canadian National Tower in Toronto |
| Space Needle, Seattle |
| TGV train in France |
| Eurostar Train |
| Japanese Bullet Train |
| The "Roundel" of the London Transit system |
| Monticello, VA |
| Stone Mountain, GA |
| Statue of Christ, Rio de Janeiro, Brazil |
| Little Mermaid statue in Copenhagen |
| Picasso sculputre in downtown Chicago |
| Statue of three soldiers near Vietnam Memorial, Washington, DC |
| the wall is OK to photograph |
| Atomium in Brussels, Belgium |
| FDR memorial, Washington, DC |
Things Domestic Animals — especially dogs, cats and horses, (If they are at all recognizable. They are considered private property.)
Flags — Flags are tied closely to national identity. Some countries have laws prohibiting the use of the national flag for any commercial purpose.
Currency — Color, full-sized images (partial depictions are ok) of paper currency, checks, or bonds. All coins are ok. These laws differ from country to country. For example UK pound notes can only be reproduced with authorization of the Bank of England.
Printed Materials — Book covers, magazines, newspapers (Wall Street), illustration in kids books, etc, are protected by copyright. This could also include copyrighted prose or poetry. A close up shot of the monument that has Martin Luther King’s “I have a Dream” speech might constitute copyright infringement because the speech is protected by copyright law.
Toys and Games — Protected by copyright and trademark.
Maps — Maps are protected by copyright unless they are created by a U.S. government agency like NOAA, USGS, Forest Service, etc. The US government holds no copyright in the works it creates.
Logos on clothing — This includes unusual or identifiable patterns, especially if they incorporate logos or are on designer-label clothes. Some examples are the Nike swoosh or the Ralph Lauren polo player. In some cases you can get by with retouching such logos, but if there is something distinctive about the cut of the clothing so it can be recognized even without the logo then retouching may not be enough.
One example to be aware of is that there have been cases where numbers of NFL football players were removed, or altered, and uniform colors changed, and it was still judged that the photo was trying to refer to professional football and therefore it was still a violation of trademark.
Art – Paintings, sculpture and drawings are protected, unless in the public domain or with the permission of the copyright holder. This includes sculpture and other public artworks in parks, building or public places, etc. Works of art that are old enough to be in the public domain (generally 75 years after the artist’s death) are not protected. Certain furniture, if by a major designer and the focus of the photo, is also trademark protected.
People
Finally, when we’re talking about releases we must not forget people. Personal releases are required of any person whose face is recognizable. In addition you should have a release of any person who could potentially recognize themselves, based on clothing, location, body, etc.
Getty says you need releases of any celebrities or well-known persons living or dead except for pre-20th century political/historical figures, such as George Washington or Napoleon. (That’s assuming, of course, that you can get a picture of George or Napoleon. A picture of a painting or sculpture of these men might be OK to use without a release, provided its old enough. But if the painting or sculpture was produced by a 20th century artist it might still be under copyright.)