What is “editorial use”?


By Andrew Hudson Published: September 27, 2011 Updated: November 18, 2016

Editorial Use is a publishing term based on the Fair Use exception of copyright law where copyrighted work can be used without authorization for purposes of news reporting, criticism, education, etc. It contrasts with “Commercial Use.”

“The Editorial Use Only license means that the image cannot be used for commercial advertising purposes.”
— iStockphoto Photography Standards: Editorial Use Only

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

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.

There is no defined line between editorial and commercial use, and it is often up to the publisher to take the risk. Ultimately only a court ruling can decide a case.

“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

“[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)

Editorial Use in microstock

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. It is up to the buyer (the user, the publisher) to make the distinction based on the use of the image.

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.

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 iStock

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, i.e. in sections or supplements in relation to which you receive a fee from a third party advisor or sponsor.

For more information, read editorial and commercial.

Comments

Comments


Reply by Clare

July 13, 2016

If one purchases an image marked for Editorial use and changed it significantly (30%), can it then be used for commercial use?


Reply by Andrew Hudson, PhotoSecrets

September 2, 2016

Essentially, you are on your own when using “editorial” images for commercial use. You are responsible for any lawsuit that might be brought as the licensing agency disavows such use.

The license agreement will contain some text on the matter:

“You may not ... Use Visual Content designated ‘Editorial Use Only’ for commercial purposes. ... Shutterstock will not indemnify or have any liability in respect of any claims arising from ... the use of Visual Content designated Editorial Use Only.”

Shutterstock License Agreement

When you license an image for “editorial use”, that means the licensing agency believes there is some intellectual property in the image which would be legally problematic if used for commercial purposes.

“An image labeled as ‘Editorial Use Only’ on Shutterstock
(an ‘editorial image’) is an image that cannot be used 
to advertise or promote a product or service. The people, objects or places in editorial images are not released.”

Shutterstock

Using such an image for commercial purposes might attract a lawsuit from the person, or owner of the property, featured in the image.

If you are going to change the image, you could remove or obscure whatever is likely the problematic component. That might reduce the chance of you getting sued.

Note that I am not a lawyer and this is not legal advice, just a general opinion. Consult a local attorney for specific advice.


Reply by Anonymous

March 6, 2016

As part of obtaining media credentials for a sporting event, the organizer/governing body stipulates that photos can be used for editorial purposes only. Would that prevent me from selling photos of an individual athlete to that athlete?


Reply by Andrew Hudson, PhotoSecrets

March 14, 2016

You might be OK. This would depend upon how the contract is interpreted. The opposite of ‘editorial‘ might be ‘commercial’, and selling photos of an individual athlete to that athlete might not be typical commercial use. If in doubt, ask the organizer/governing body.


Reply by Osama

February 3, 2016

Hi,

Thank you Andrew for this article, I just want to confirm my understanding, so I don’t need a permission from the photographer if I take a photo for a city from the Internet and use it as part of my online news website for editorial purposes, right?

Thanks,

Osama


Reply by Barne

September 22, 2015

Does ownership or control of the contents of an image have any impact? I found a great image of a yacht whose owner I know personally and maintain a site for. The site is commercial in the sense that it passively promotes the yacht. The point is, the yacht in question lies square in the focus of the image and, though I’d like to get official release to use it, there is no way of knowing who has the right to allow it. I’d like to believe that the owner of the subject of the photo has the right to take liberties when legal ownership is unclear and undocumented. Is there any merit in that line of thought?


Reply by Andrew Hudson, PhotoSecrets

January 12, 2016

Hi Barne,

Yes there is merit in that line of thought.

Get permission from the owner of the yacht.

Photos like this have two issues: copyright and property right. If you take a photo, then you own the copyright, so that is taken care of. If your photo includes recognizable property, such as a yacht, then the property owner may have a property right. This depends upon local (state) law. If you were to sell or license the photo, then you would be making money partly due to the efforts of the property owner. So you would be wise to get permission from the property owner (in writing). For more info, see property release.

In your case, you know the owner, so that should be simple.


Reply by Anonymous

August 25, 2015

What I don’t get is why iStock offers an extended licenses “items for resale” even for editorial images. How can this be possible or is this meant for news papers that have a price but may contain also those editorial images?


Reply by Andrew Hudson, PhotoSecrets

January 12, 2016

I don’t get that either, and I’m not sure it’s true.

The iStock license says “No Commercial Use of ‘Editorial Use Only’ Content.” Any image can be used for editorial use, but images marked ‘Editorial Use Only’ can only be used for editorial use, not commercial use, such as on an item for resale.


Reply by Anonymous

July 27, 2015

What about using an image in an application (Android, iOS)?


Reply by Andrew Hudson, PhotoSecrets

January 13, 2016

This might depend upon the app. Something factual, like Wikipedia, might be considered editorial. But a game for sale might be considered commercial.


Reply by Anonymous

June 15, 2015

So the inside of a magazine is OK, but how about the front cover?


Reply by Andrew Hudson, PhotoSecrets

June 16, 2015

Correct. A cover can be considered to be commercial, as it helps sell the magazine.


Reply by Shelly Hawthorne

May 6, 2013

Where’d all the info go?


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