What can and cannot be legally done with editorial photos?

Question

I'm wondering what is allowed to do with editorial images (as opposed to "commercial" photos) - and I'm not talking about the rules of a specific stock photo agency, rather about laws.

I know commercial photos can be used for commercial purposes and editorial purposes, thus I can use such a photo vor promoting a product (advertisement).

As far as I know, editorial images must not be used for commercial purposes, to promote something/advertise for something because it may contain object and/or persons without release.

Further most agencies also add (to further clarify) that you cannot use editorial photos to sell anything.

So far so good, but the devil is in the details, because "sell anything" isn't very specific.

I'm pretty sure that editorial images can be used in a free informational newsletter when used in a editorial context (to aid the story).

But can editorial photos also be used in a news paper? When the news paper is free and the photo is used in an editorial context, I'm pretty sure this is possible. But what is with news papers that must be bought (but the photo is also used in an editorial context)? The news paper is sold... so is this a no-go for editorial? Or is this OK, as the editorial images is merely an aid for an article inside the news paper?

Furthermore, what about products. For example if there is an mobile app which uses an editorial images and the app must be bought. I guess this is only OK as long as the image is also only used in an editorial context inside the app. Maybe as an example if there is an app about "Beaches" which describes different beaches and also shows an image of each beach, there could an editorial image of that beach be used. Correct?

Answer 1

Legal issues vary by region and advice from the internet may be worth what you pay for it.
This is not advice, just the rule of thumb I use.

When it comes to 'editorial' use the medium is irrelevant; context is king.

The purpose of a release is to provide permission for others to assign viewpoints/opinions to them in derivative works. Releases may be needed for all sorts of things (not just people) and their use, necessity, and enforceability vary by jurisdiction.

Editorial images are usually results of situations where a release cannot be obtained or where the creators have licenced them for that purpose specifically. For example, many large companies make a subset of their own image libraries available to the press, usually after a vetting process to ensure they're legitimate.

Images provided for editorial use are just that, they are intended for illustrative use as part of a larger work in which the image is not the main/sole focus (alongside a written article) or contain the story elements directly in situations like news reporting and photo-essays.

Take an image of someone eating pies at a competition held in a public place. A photographer covered the event and provided them to you on an editorial basis.

You have an article discussing why pie you like best... that's fine as the context is clear that the subject definitely likes pie too. Even as a pie-shop owner you'd be in the clear provided that the 'editorial' content was clearly segregated from any promotional/advertising content.

However, an article discussing eating disorders which implies that the subject has such a disorder would not be fine. That might be the only pie-eating competition they've ever entered and in fact they otherwise eat healthily - should the subject discover the content a libel lawyer would most likely be taking you to the cleaners.

Even editorial use doesn't get you around other legal hurdles (for example copyrights and rights to privacy which have stronger protection in some regions than others.)

Answer 2

The delivery method of content is irrelevant. Paid newspaper, free newspaper, paid app, free app - it doesn't matter. It is the way the content is used that determines if it is editorial, artistic, or commercial.

Editorial usage in the way you are speaking of it only applies if you hold the copyright to the image. If someone else holds the copyright, then you must obtain permission from them to use a photo for editorial (or any other type) usage.

Even if a publication, such as a newspaper or magazine, is not free and must be purchased to obtain a copy that doesn't make all of the content commercial. Any advertisements contained in the publication are covered under the rules of commercial usage, but the editorial and artistic content is not.

For commercial usage, even if you hold the copyright you must also obtain permission from any recognizable individual in the photo, the holder of any recognizable trademark in the photo, or the owner of any other type of protected intellectual property depicted in the photograph, such as an outdoor sculpture or a building with a unique design.