Ensure that you get the proper releases if you’re using a photograph with human subjects. Whether on your label or in your advertising – if you’ve gathered photographs from a festival or from fans through a social media campaign you need clearance. That means a release from the artist – he photographer – as well as releases for each of the individuals pictured in the photograph. The photographer has copyright interests in their creation, but that’s not the only right you need to worry about, the individuals have rights of publicity in their images – which are actionable when you use them for a commercial purpose.
As this recent lawsuit against the makers of Natural Light shows, using social media photographs without clearing the subject and artists various rights through proper releases will lead to a lawsuit. The subject of a photograph submitted through that social media contest where you could photograph someone and add a mustache and submit it to Natural Light filed against Anheuser-Busch. The subject of a the photograph above taken by her friend sued the brewer alleging the beer company used her photograph without permission. The lawsuit says her friend took a picture of her and after it was submitted, Natty Light used it as part of a promotion placing the photograph on coasters, posters and elsewhere.
The terms and conditions of the contest contained all the proper releases, warnings, and rules that you should have when running a social media event where people will be submitting photographs that you might want to post on your website or use in some other commercial forum (yes, arguable even posting it in your website’s comments section amounts to your commercial use). You can read the contest rules here. Unfortunately, the releases in those rules are only as good as the rights held by the person submitting the media for use in the contest. So, a photographer submitting photographs of individuals to your contest, may have their owner copyright interests in their original artwork that they can waive or assign (depending on the rules and terms) but unless the photographer has obtained the rights of the individuals or achieved their waiver, the photographer can only assign those copyrights, not the rights of publicity that the subjects of the photograph have in their own rights of publicity. That’s at the crux of this lawsuit. The brewer took the photograph submitted through social media and put it on a bunch of coasters as promotional items advertising their beer brand and different bars around the country. They allegedly never received the rights or permission from the subject to use the photograph commercially. (The lawsuit also alleges that the subject obtained an assignment of the photographer’s rights as well, but assuming the photographer was aware of the rules or had a chance to review them before submitting the photograph, it’s likely that a court would enforce the waiver consummated by the photographer in submitting the picture pursuant to the terms and conditions.)
The rules linked above contain a representation by the person submitting the photograph promising that they have the rights to the photograph and that no right of publicity is infringed by the photograph. However if your contest entrant doesn’t tell you the truth or doesn’t know what rights they have or don’t have and that they don’t own the right, you will find yourself in a situation where you should worry about liability. That’s what happened in the above linked complaint which alleges that Anheuser-Busch used in photograph without both the photographer and the subject’s consent. While the contest rules are clear and require the parties submitting a photograph to give up their rights, it’s also clear that unless she submitted a photograph herself, the subject did not give up those rights. Also, for what it’s worth, unless those terms and conditions were clear and conspicuous, there’s even a question at the party submitting the photograph gave up their rights.
Tips: So what could the brewer have done better in the situation?
Once they decided to use the photograph they could have performed proper clearance – contacted the party submitting the photograph to ensure that they have both the waiver of copyright and determined if the right of publicity of the subject was waived as well.
To bolster the enforcement of the online agreement waiving the rights of the photographer they could have required a click-wrap pop up with it email confirmation whereby the submitter would have been putting their email address and received an email confirming their consent to the terms and conditions.
As for the subject and the rights of publicity. Unfortunately, in this kind of situation the only way to track down the actual subject of the photograph is through due diligence. Start with the photographer and backtrack – a simple question asked of the person submitting the work to you and you could know right away whether or not you need to do further due diligence. It’s surprising in the scenario above that the brewer just ran with it rather than doing the kind of diligence they would have if they purchased the photograph from someone.
Also by simply highlighting these kinds of requirements in contest rules (putting the waivers up front in plain language or in bold) you may catch the eye of the submitter and get them to think about whether they have the authority to make the representations they’re making in submitting a photograph – e.g. that they have the rights or that they need to get consent from their subjects as well.
This is another in a long line of lessons that just because something has become easier through electronic media and the internet, the rights of artists and people haven’t changed. Proper clearance and due diligence are still necessary when dealing with photographs or video that feature depictions of individuals in promotions, advertising media, on your labels, your posters, your television spots, and your online advertisements.