Does it have to be editorial?

[Pietrach]

Hi,

For all images that contain either people or any form of property, i always mark them as Editorial only, as my understanding is that these cannot be sold as commercial unless I obtain model/property release.

Is this the right way to do? 

 

Thank you

[vpics]

Are the people recognisable? Are they incidental? Is it a well-known landmark? Were the images taken on public ground? Etc. 

Sometimes it might just be enough to tick the boxes that you don't have model or property releases. 

[Cryptoprocta]

If you are submitting RF, these must be marked 'Editorial only'.

If you are submitting RM,  you don't need to specifically tick the 'editorial only' box. I believe Alamy recommends not to for RM, but I do if one or two people, or a brand, is prominent, just as an extra layer of protection, not so much for a 'crowd scene'.

[Kukkudrill]

Commercial use is a broad term covering a multitude of uses, some of which might be permissible even if there are people or property in an image. For instance, the owner of the property might want to use your photo for advertising purposes. Somewhere on this forum a while ago I read about Alamy contacting a photographer to remove an editorial use only restriction from a particular image to enable a commercial sale which Alamy themselves were obviously happy with. So I only rarely mark images as editorial use only, even though most of mine have identifiable property in them. As vpics says I usually rely on the no model/property releases tick boxes.

 

Most of my photos are RM but I would take the same approach with editorial RF.

[Bryan]

I normally sell RM and very rarely tick the Editorial only box, generally only for those places where I'm not fully sure of the situation re the  right to shoot and sell. Most of my images include property that is not released, and I mark them as such. They include some of my best $ sales (for the most unlikely of subjects!) which might not have come my way had they been Editorial only.

[Bill Brooks]

With the new AIM there is no must. The choice is up to the photographer.

 

If a RF image !!!!! FEATURES !!!! people or private property without a release, I check “editorial only”

If an RF image is an overall street scene, for instance, that has unreleased people or property that are in the image without being featured, I do not check “editorial only”. Otherwise you could never sell a RF city skyline or a crowded beach, or a street image as commercial.

 

If I shot RM images, I would apply the same logic. I think there should be no difference between RF and RM on this issue.

 

The new Alamy Image Manager (AIM) leaves the choice of what to do, and any risk involved, up to the photographer. It is one of the big changes over the old AIM where any person bigger than a pixel forced the image into RM.

 

I should state that I am not speaking for Alamy, just myself.

[Rick Lewis]

If you are a U.S. based photographer, I would suggest any image with remotely recognizable people or any trademarked property, or even property without a logo but is so recognizable that one can reasonably say it is a trademarked item, should be marked as editorial only, regardless as to whether it is a RM or RF image.  This is referring to unreleased images.

 

The U.S. is a pretty litigious country, with attorneys behind every tree. (some would say under every rock).  The buyer ultimately decides on how they will use the image.  The check box should give you at least modicum of protection showing you knew it was unreleased and you made a reasonable effort to market the image for editorial use only even if it is used commercially against your wishes.

 

I can't speak for other locations.  The EU has different laws and then there are countries that just don't monitor this type of issue.  I can assure you, they do here in the U.S.

 

Rick

[Kukkudrill]

I'm no lawyer but my impression is that the definition of what constitutes a trademark infringement is pretty narrow, even in the US. Commercial use of an image featuring a trademarked object is by no means automatically a trademark infringement. If it were, an advert like this - published in Aviation Week, a US-based magazine - wouldn't be possible. In spite of the Pinocchio nose the aircraft in the advert is very recognisably a Boeing 737 and, to drive the point home, it even features the word "Max" - a reference to the 737 MAX, the current generation of the 737. 

 

 

Source: https://skift.com/2012/11/28/airbus-gets-back-at-boeing-for-ad-claims-by-turning-its-aircraft-into-a-lying-pinocchio/.

[wiskerke]

14 hours ago, Kukkudrill said:

I'm no lawyer but my impression is that the definition of what constitutes a trademark infringement is pretty narrow, even in the US. Commercial use of an image featuring a trademarked object is by no means automatically a trademark infringement. If it were, an advert like this - published in Aviation Week, a US-based magazine - wouldn't be possible. In spite of the Pinocchio nose the aircraft in the advert is very recognisably a Boeing 737 and, to drive the point home, it even features the word "Max" - a reference to the 737 MAX, the current generation of the 737. 

 

 

Source: https://skift.com/2012/11/28/airbus-gets-back-at-boeing-for-ad-claims-by-turning-its-aircraft-into-a-lying-pinocchio/.

 

And your point is?

 

You have no way of knowing whether this was a RM or RF image.

I don't think anyone had figured out the concept of editorial RF in 2012.

So it's well possible it's either a fully released image, or (most likely) it was a free PR hand-out by Boeing itself without any restrictions attached. Because it usually is.

 

wim

[Kukkudrill]

7 hours ago, wiskerke said:

 

And your point is?

 

You have no way of knowing whether this was a RM or RF image.

I don't think anyone had figured out the concept of editorial RF in 2012.

So it's well possible it's either a fully released image, or (most likely) it was a free PR hand-out by Boeing itself without any restrictions attached. Because it usually is.

 

wim

 

My point is that commercial use of an image featuring a trademarked object is by no means automatically a trademark infringement. Just like I said in my post  Meaning you might be foregoing perfectly legitimate sales if you restrict every such image you have to editorial use only. You need to use your judgement. 

If commercial use of an image featuring a trademarked object were automatically a trademark infringement, then this image could not have been used in this advert. Unless, of course, the photographer got a property release from the trademark owner, but we both know that's extremely unlikely. 

 

Whether the image was RM or RF (assuming it was a stock photo) is irrelevant. 

 

Free PR handouts by Boeing are released for editorial use only. Check their website.   

[wiskerke]

2 hours ago, Kukkudrill said:

 

My point is that commercial use of an image featuring a trademarked object is by no means automatically a trademark infringement. Just like I said in my post  Meaning you might be foregoing perfectly legitimate sales if you restrict every such image you have to editorial use only. You need to use your judgement. 

If commercial use of an image featuring a trademarked object were automatically a trademark infringement, then this image could not have been used in this advert. Unless, of course, the photographer got a property release from the trademark owner, but we both know that's extremely unlikely. 

 

Whether the image was RM or RF (assuming it was a stock photo) is irrelevant. 

 

Free PR handouts by Boeing are released for editorial use only. Check their website.   

 

Of course it's a trademark infringement. A deliberate one. But not by the photographer.

It's an image that shows an identifiable object and it's its main subject. The leeway in the US is not in whether or not this is an infringement but in allowing antagonistic campaigns.

 

>Free PR handouts by Boeing are released for editorial use only. Check their website.   

Well spotted!

I had not checked the Boeing website, but real handouts are very often still without any restrictions in many industries.  Maybe not in aviation.

It's not very relevant if the user is going against the restrictions deliberately.

Boeing even has it's own licensing channel aka stock agency. At least since 2006. Where you can order a fully released image for use in your own campaign. That would be a neat trick: to use an image licensed from Boeing Stock to use in a mean ad against the company.

 

So if I had that image I would declare it needing a release and tick the box no release available. It's up to the end user to decide.

 

wim

[Kukkudrill]

1 hour ago, wiskerke said:

 

Of course it's a trademark infringement. A deliberate one. But not by the photographer.

It's an image that shows an identifiable object and it's its main subject. The leeway in the US is not in whether or not this is an infringement but in allowing antagonistic campaigns.

 

Seems to me, if antagonistic campaigns are allowed, then they cannot considered trademark infringements, otherwise the party that is being portrayed negatively in a campaign could sue the advertiser and stop the campaign. 

 

1 hour ago, wiskerke said:

 

Boeing even has it's own licensing channel aka stock agency. At least since 2006. Where you can order a fully released image for use in your own campaign. That would be a neat trick: to use an image licensed from Boeing Stock to use in a mean ad against the company.

 

It would, but I don't think it's possible. The fine print sets out licensing terms equivalent to what we would call unreleased RM. It also gives Boeing the right to approve the end use work in which images are used, including photo layout, text, web page etc. Of course I don't know how long these conditions have been in place - for all I know they might have been introduced in response to that 2012 Airbus advert.