Editorial & Commercial
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 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 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
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.
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 … 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.
One subject that always needs releases for commercial use is artwork.