Head of Shutterstock’s Rights and Clearance department, Corky Balch, discusses the legality of using famous faces for your next campaign.
Want to include an image of Muhammad Ali in your next ad campaign but don’t know if you have the rights, or how to go about getting them? Using iconic figures to promote brands and services is a perennially popular strategy, but it’s not always a fast one. There are often legal issues to consider, third-party permissions to obtain, and negotiation tactics to employ.
The good news is Shutterstock recently launched its first-ever in-house Rights and Clearance service, meaning we’re here to help you, our customer, deal with the ins and outs of the process.
To give you a taste of how it all works, we’ve enlisted Corky Balch, head of the Rights and Clearance department, to answer some of your burning questions. Here goes . . .
Burning Question: I’ve licensed a photo of a famous person from Shutterstock. Does that automatically mean I can use the image to promote my brand?
Nope. Take a look at our Life collection, for example: Shutterstock, through Life, can license the copyright to a photo in that collection, but Shutterstock cannot grant any rights or make any warranties for who is depicted in the photo, because we do not have a model release.
In other words, we don’t represent the famous person in the image. So, we’d need to go and get their permission and negotiate a bespoke deal.
Burning Question: Why doesn’t Shutterstock have model releases for images of famous people?
Because those images were shot for editorial purposes. Newspapers, documentarians, publishers, and blogs generally don’t need to have a model release to use that content. However, if a client wants to use the photo of a celebrity to promote themselves, to advertise a product, brand, or service, they do need to think about the lack of model releases. What Rights and Clearance does is offer a path for advertisers to clear additional rights that we don’t represent.
Burning Question: Do I need a model release if the person I want to feature is dead?
I can’t give an easy yes-or-no answer. First, you need to understand right of publicity, or a person’s right to control the commercial use of their image, whether they’re famous or not. Right of publicity laws are different in every single country around the world, with some laws offering more protection after a person’s death than others.
In the U.S., those laws are statutory, meaning they vary from state to state. California, for instance, recognizes a person’s right of publicity for seventy years after they’re dead, and during that time, their estate controls how advertisers may use their likeness.
For argument’s sake, let’s say you want to use the image of a celebrity whose right of publicity is no longer protected. That doesn’t necessarily give you the green light to move ahead with that person’s image. Because, although you may be in the right legally, the famous person’s estate may still come after you very, very aggressively saying, “You can’t do that.” Especially if they don’t like the context in which you’re using their client’s image.
So, depending on the public figure and the team that represents their estate, you might want to obtain third-party rights to the photo. Or, you might consider something like Shutterstuck’s Asset Assurance, which is our indemnity where we don’t clear rights, but we do protect customers from potential model or property claims.
To be clear: We would absolutely go the route of clearance if we were legally obliged to do so. The only reason we wouldn’t do a clearance is if the person or the property featured in the photo doesn’t actually have any legal rights. It’s a legal assessment, so our team would weigh the risk.
Burning Question: Let’s say the celebrity is alive. How does the clearance process work?
We need to see everything the client wants to do with the photo, their entire creative plan, because the celebrity’s team will want to see that.
For example, if we’re clearing Gwen Stefani, Gwen Stefani’s agents, and Gwen, will want to see absolutely everything the client is going to do: How is the image going to be used and where? Is it just going to be used in one country or is it global? Is it going to be online? In print? And, how long are they going to do it for? Six months? One year? Five years? All of these factors are going to affect the price.
Burning Question: How long does the clearance process take?
It can take a few days. It can take a few weeks. In some cases, it may take a month or longer, depending on the complexity of the negotiations and the contracts.
Remember, we rely on the discretion of third parties. We are not agents for these famous people. But, because we have a lot of experience doing this and a lot of very good contacts, we can do it efficiently in terms of time and cost. Initial assessments are free and the sooner you involve us in the process, the greater your chance of successfully clearing the content.
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Cover image via Kobal/Shutterstock.