Editorial & Commercial

Copyright:
Fair Use:
Commercial

A car advertisement is a classic example of Commercial Use


DISCLAIMER: THIS IS NOT LEGAL ADVICE. I AM NOT A LAWYER. DO NOT DEPEND ON THIS.

“Images that are marked as “editorial use only” are ones that have not been released for commercial use and have also been taken without the consent of the individuals in the photo.”
Angela Cho, Graphic Designer, Shutterstock.

Stock agencies and publishers use the contrasting terms “Commercial Use” and ”Editorial Use” to distinguish between applications that need releases and those that don’t.

Commercial Use

Commercial Use is when releases are required. The classic example is advertising.

When photographs are used for predominantly private financial gain, such as in advertisements, to avoid lawsuits and keep everyone happy, any intellectual property included in the photo must have releases.

For example, model releases are required for all people; property releases are required for all property; licenses are required for all artwork, logos, designs, and architecture; and approval is required for any trademarks.

Obviously, this involves a lot of work and money. In addition, permission may be denied which means the photo cannot be used. But permission is not needed in some instances when the usage is not commercial. Those uses are termed Editorial.

Editorial Use

Editorial Use is when releases are not needed. The classic example is news reporting.

“[Images] with the editorial license may be used to illustrate truthful articles or broadcasts appearing in magazines, newspapers or any other editorial context, in either printed or electronic media.”
— Dreamstime Terms and Conditions.

Under British common law and U.S. copyright law, there is a concept of “fair use” (or fair dealing). When the public good is served, publishers do not need permission from the copyrights holders to make copies of copyrighted works.

The publishing industry extends this concept into other forms of intellectual property under the term “Editorial Use.” Note that this is not a legal term and does not have a fixed definition.

“Images included within the editorial section may include visible logos, or identifiable persons who didn”t sign a model release document. You are solely responsible for the usage given to such images.”
Dreamstime Terms and Conditions.

The microstock industry considers “Editorial Use Only” photos to be ones that simply do not have all the applicable model and property releases and thus should not be used for “commercial” applications. Notice that, in this context, Editorial is not so much a something as it is an absence of something, namely releases.

Editorial Use as Defined by iStockphoto

iStockphoto Photography Standards: Editorial Use Only

The Editorial Use Only license means that the image cannot be used for commercial advertising purposes.

An Editorial Use Only image can be used:

  • In a newspaper or magazine article
  • On a blog or website for descriptive purposes
  • In a non-commercial presentation

An Editorial Use Only image cannot be used:

  • In any kind of advertising or promotional material.
  • For any ‘advertorial’ purposes, ie: in sections or supplements in relation to which you receive a fee from a third party advisor or sponsor.

Buyer Beware

Microstock agencies are very wary of Editorial Use Only photos. There’s less money to be made in non-commercial businesses and an absence of property releases means potential lawsuits. So any photos that are even slightly editorial get labeled as editorial, and many tricky subjects such as sports and entertainment get ignored entirely. Disclaimers abound and the responsibility for clearances gets left to the publisher.

Shutterstock Disclaimer for Editorial Images

Shutterstock … does not make any representations or warranties whatsoever with respect to the use of names, trademarks, logos, uniforms, registered or copyrighted designs or works of art depicted in any image. So it is important to consult with your own legal and to review your license agreement to make sure that all necessary rights, consents or permissions as may be required for reproduction of any image have been secured by you.

Subjects That May Not Even Be Editorial Use

Some subjects are legal minefields and may not even rise to the level of Editorial Use Only. These include:

  • Sports: Everything is problematic including uniforms, logos, leagues, and players.
  • Entertainment: Publicity laws vary by state and even dead celebrities are protected.
  • Unreleased Consumer Goods: Trade secrets, unfair advertising and unfair competition are just the start.

Commercial v Editorial

In some ways, the definitions are circular: commercial use is not editorial use, and editorial use is not commercial use. From a microstock perspective, most photos are editorial use, and the ones with all appropriate releases are also commercial use.

While editorial photos have less legal requirements, they have more photographic requirements. Unlike commercial photos which can be creative, editorial photos must:

  • be essentially unaltered (little Photoshop work allowed)
  • not be staged or posed (the situation must be found)
  • must be captioned with location, date and an accurate description
  • must include accurate EXIF data from the camera

Should I Shoot for Editorial?

That’s up to you, but I wouldn’t. If your interest is photojournalism, then sure, but if your goal is long-term income from microstock, then no.

Newsworthy photos are, by their nature, time sensitive. Last week’s news is no longer news so those photos won’t sell any more. The money in microstock photography comes from selling continuously to the widest market possible. So the more timeless and universal you can make your photos, the more profitable you will be.

Certainly in microstock, being able to upload Editorial Use Only photos is beneficial as photos that previously didn’t have a market due to a lack of releases now at least have some market. But “shooting for editorial” is somewhat like saying “not shooting for commercial.” And that’s a shame. Because commercial, means money — to you.

Creative Commons: any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation.Commercethe purchase and sale of goods and servicesCollins English Dictionaryfrom L. commercium "trade, trafficking," from com- "together"+merx (gen. mercis) "merchandise"whether such use is of a commercial nature or is for non-profit educational purposes

The Committee has amended the first of the criteria to be considered — “the purpose and character of the use” — to state explicitly that this factor includes a consideration of “whether such use is of a commercial nature or is for non-profit educational purposes.”

This amendment is not intended to be interpreted as any sort of not-for-profit limitation on educational uses of copyrighted works. It is an express recognition that, as under the present law, the commercial or non-profit character of an activity, while not conclusive with respect to fair use, can and should be weighed along with other factors in fair use decisions.

House Report 94-1476.

Part 3: Use:
3.5 Fair Use:
Private:
Commercial

“[When the use has both commercial and non-profit characteristics, the court may consider] whether the alleged infringing use was primarily for public benefit or for private commercial gain.”
— MCA, Inc. v. Wilson, 677 F.2d 180, 182 (2d Cir.1981)

“The fair use doctrine is not a license for corporate theft.”
— Iowa State University Research Foundation, Inc. v. American Broadcasting Companies, Inc., 621 F.2d 57, 61 (2d Cir.1980)

“[Fair use] means that a reasonable portion of a copyrighted work may be reproduced without permission when necessary for a legitimate purpose which is not competitive with the copyright owner’s market for his work.”
1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law.

“the competitive character of the use.. is often the most decisive.”
1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law.

“[Factor 4 is] concerned with secondary uses that, by offering a substitute for the original, usurp a market that properly belongs to the copyright holder.”
— Infinity Broad. Corp. v. Kirkwood, 150 F.3d 104, 110 (2d Cir.1998).

“The purpose of copyright is to create incentives for creative effort.”
—Sony Corp., 464 U.S. at 450, 104 S.Ct. at 793.

“[A] use that has no demonstrable effect upon the market for, or the value of, the copyrighted work need not be prohibited in order to protect the author’s incentive to create.”
— Sony Corp., 464 U.S. at 450, 104 S.Ct. at 793.

“For a commercial use to weigh heavily against a finding of fair use, it must involve more than simply publication in a profit-making venture.”
— NÚÑEZ v. CARIBBEAN INTERNATIONAL NEWS CORP quoting Campbell, 510 U.S. at 572, 577-78, 114 S.Ct. 1164. 584, 114 S.Ct. 1164

“Every commercial use of copyrighted material is presumptively an unfair exploitation of a copyright owner’s monopoly; accordingly, the likelihood of future harm may be presumed. Whereas, when the use is noncommercial, the copyright owner must demonstrate by a preponderance of the evidence that there is ‘some meaningful likelihood of future harm.’”
— Hustler v Moral Majority, quoting Sony Corp., 464 U.S. at 451, 104 S.Ct. at 793.

“This last factor is undoubtedly the single most important element of fair use.”
— HARPER & ROW v. NATION ENTERPRISES, 471 U.S. 53

“every commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright.”
Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 449 (1984).

“The crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.”
— Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 562 (1985).

“the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.”
— Acuff-Rose, 510 U.S. at 579.

“Fair use, when properly applied, is limited to copying by others which does not materially impair the marketability of the work which is copied.”
— Nimmer l.10[D], at 1-87

“Merely arguing that [someone] replicated the entirety of the Work the market for the Work was diminished is not sufficient to show harm.”
— Righthaven v Hoehn, 2011

“profit is its primary motive for making the exchange.”
— Pacific & Southern Co. v. Duncan

“[financial gain] will not preclude [the] use from being a fair use,”
— New York Times Co. v. Roxbury Data Interface, Inc., 434 F. Supp. 217, 221 (D.N.J. 1977)

“The crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.”
— Harper & Row, 471 U.S. at 562.

“[to negate fair use, one need only show that, if the challenged use] should become widespread, it would adversely affect the potential market for the copyrighted work.”
— Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. at 451.

“If the defendant’s work adversely affects the value of any of the rights in the copyrighted work the use is not fair.”
— Nimmer 13.05[B], at 13-77 - 13-78.

“[Fair use] distinguishes between a true scholar and a chiseler who infringes a work for personal profit.”
— Wainwright Securities Inc. v. Wall Street Transcript Corp., 558 F.2d at 94.

“[E]very commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright.”
— Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. at 451.

“[a] challenge to noncommercial use of a copyrighted work requires proof either that the particular use is harmful, or that if it should become widespread, it would adversely affect the potential market for the copyrighted work.”
— Napster, 239 F.3d at 1016

“[courts should] consider not only the extent of market harm caused by the particular actions of the alleged infringer, but also whether unrestricted and widespread conduct of the sort engaged in by the defendant .. would result in a substantially adverse impact on the potential market.”
— Harper & Row v. Nation Enterprises|Harper & Row, 471 U.S. at 567.

“The use of the Kinko’s packets, in the hands of the students, was no doubt educational. However, the use in the hands of Kinko’s employees is commercial. Kinko’s claims that its copying was educational and, therefore, qualifies as a fair use. Kinko’s fails to persuade us of this distinction.”
Basic Books, Inc. v. Kinko’s Graphics Corp., 758 F.Supp. 1522 (S.D.N.Y. 1991).

“we need only find that Kinko’s had the intention of making profits.”
Basic Books, Inc. v. Kinko’s Graphics Corp., 758 F.Supp. 1522 (S.D.N.Y. 1991).

“The crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.”
Harper & Row v. Nation Enterprises, 1985

“The commercial nature of a use is a matter of degree, not an absolute …”
Maxtone-Graham v. Burtchaell, 803 F. 2d 1253 - Court of Appeals, 2nd Circuit 1986

Related: Nominative fair use (trademark).

Commercial definition: Public Law 106-206, California Code 4316, 4600, 4613, Photo Permits, Definition of Commercial Filming (page 35) by California State Parks

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