Legal Issues about Microstock and Digital Photography
Stata Center, Massachusetts Institute of Technology © 2013
When we talked about the requirements of the images in order to be offered for sale via Microstock agencies, we saw that one in particular is the obligation for the contributor to have full rights of syndication of the image itself. [pullquote-right]”What is relevant for microstock selling is not how the images are taken, but the contributor’s right to use them”[/pullquote-right]Regardless of what you can or can’t photograph, which is related to matters such as privacy rights, public order and public decorum, what is relevant for microstock selling is not how the images are taken, but the contributor’s right to use them, especially for commercial purposes.
It may seem obvious, but it’s good to remember this: the contributor must be the material author of the shooting, or at least the supervisor, the “artistic director” or anyway the owner of the image. You can’t send to agencies images which were taken by other people, at least not without a specific permission from them.
Talking about the content of an image, you can’t sell images containing recognizable elements such as faces of people, trademarks, design elements, buildings protected by copyright and private properties.
“What can I do if I have an image that contains one of these recognizable elements and I want to sell it anyway through Microstock agencies?”
In this case, you have basically three different options:
1) obtaining a specific release (release form) by the legitimate owners of the rights protected in the image;
2) editing the image, by physically removing those elements that could lead to a violation of the rights;
3) mark the image as “editorial“, if the agency accepts this kind of material (not all the agencies do that) and if the image content has a relevant editorial value.
Let’s see these 3 options more in detail:
Release Forms
As seen in the article about “stock oriented” images, the photos containing people are surely a better option to express concepts and metaphors in a clearer and effective way, thus giving the contributors a wider range of possibilities to express their creativity and to realize images of higher commercial value. If it comes to people who knowingly lend their image for the photo shoot, even if they’re not professional models, it will be quite easy for the photographer to get a release for the use of the image for legal purposes, such as the publication on a website or on a billboard. In this case it is possible to set up a generic document of release (called “Model Release“) that can be good for all uses, but it is advisable to use the model release forms supplied by microstock agencies, which only need to be filled and signed by the recognizable subject portraited in the picture. Some agencies also offer a specific model release for minors (called “Minor Model Release“), which is of course signed by the parents of the minor.
Same goes for private property, such as restaurants, hotels, interiors or exteriors of buildings and private residences, protected design elements, works of art and whatever is material or intellectual property of public or private subjects. Even some famous buildings, such as the Empire State Building in New York, are protected by copyright and you need a specific model release for sharing images that have them as the main subject (instead there is no need to have a model release for a picture of the skyline of New York that includes the Empire State Building, if this is not the main subject). Even in the case of private property there is a specific model release (called “Property Release“) set up by all the major microstock agencies.
Metropolitan Museum of Art, New York © 2013
Retouching to remove copyright-protected items
This option occurs pretty often when it comes to street or travel photography: if we take a picture of a monument, a square or anyway a tourist spot, it is quite common to accidentally frame unknown people in our image, or maybe billboards with visible logos, or even shop signs or other copyrighted elements. In these cases it is quite hard to get a model release that authorizes us to use the image for public purposes. If possible, you can use retouching techniques to remove those problematic elements and literally make them disappear from the image. For those familiar with Adobe Photoshop, it’s about mastering tools such as “clone stamp“, “healing brush“, “spot healing brush” and the feature “content-aware fill“. Obviously this kind of editing is a little risky, as well as expensive in terms of time, depending on the difficulty of the required modifies. Removing the logo from a Nike sneaker can be simple; instead completely delete a bunch of people who disturbed our composition can be a much more difficult and with results that can lead to a significant quality loss of the image, making it in fact a strong candidate for rejection. You must resist the temptation to simply delete or modify the characteristics of people’s faces: no agency will ever accept a picture with “faceless monsters” and, moreover, which customer would ever want to buy it? [pullquote-left]”The most effective way to make people unrecognizable is to simply eliminate it from the image”[/pullquote-left]The most effective way to make people unrecognizable is to simply eliminate it from the image. Bad news gone, it is worth remembering that it is not necessary to edit unrecognizable people, for example when their face is in the shade or covered, or they are framed from a great distance, or even just partially framed on unrecognizable details of their body, such as an athletic abdomen or two shaking hands.
Ponte della Musica (Music Bridge), Rome © 2012
Editorial Images
There’s another option for offering to agencies images that contain copyright-protected items: the possibility of selling them through an editorial license. An image granted by this license may be used by the purchaser only in support of an editorial article, according to a legitimate freedom of the press. According to this principle, the image may remain intact as it was taken, with recognizable faces, logos or other copyright-protected items, but can not be used for commercial purposes, such as the creation of advertisements.
Since the earnings paid by the agencies for editorial images are identical to those for the royalty-free images, this would seem the ideal solution to not waste time asking for model releases or complicated photo retouching. But it is not as simple as it seems.
First, not all agencies deal with editorial images: to see a list of those who accept them, you can check this summary table.
Among the agencies that accept them, the majority decides which of the images sent from contributors are suitable for royalty-free license and which can only be accepted as editorial images. Other agencies such as Shutterstock, BigStockPhoto and iStock instead claim that it is up to the author to mark the images as editorial during the submission, moreover with the obligation to use a specific description format while setting metadata.
Finally, it is not obvious that the image will be considered suitable for supporting a potential article. In other words, the content of the image must clearly be “newsworthy” in order to be accepted as editorial image
Apple Store 5th Avenue, New York © 2013
More about the world of Microstock at the following pages:
- What is Microstock?
- Top Microstock Agencies
- What Images sell best on Microstock market?
- How do buyers use microstock pictures?
- Earnings and Payments
- Promoting your portfolio, Referral/Direct Links
- Being an Exclusive Author
- Tax Center
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