Photographic Rights

An interesting article appeared in Campaign two weeks ago. Headlined "The Fight for Rights", it had this subtitle: "Use an image without clearing it properly and you could get sued for millions".



Here's a scan of the headline and here's the first part of the article. You need to subscribe to brandrepublic.com to read the whole thing.

What's prompted me to write about this is an article in Ad Age about PR for Stevia, a supplement that's used as a sweetener for people who are interested in eating low carb food.

"Sweetener to the Stars: Celebrity Tie-ins Boost Stevia Sales, Unapproved Herbal Sugar Substitute Cranks Up Heavy PR Campaign. -- Arianna Huffington uses it. Entertainment mogul Suzanne de Passe asks for it. And Hachette Filipacchi Media President-CEO Jack Kliger prefers it."

Describing Jack Kliger as a star and celebrity should give him a welcome boost. Especially as there is on-going anger in the blogosphere because Hachette Filipacchi did not obtain Michael Yon's authorisation before using his famous photograph on the front cover of the launch issue of Shock.

Thousands of retailers have refused to stock the magazine (yay Ralphs!) and Michael Yon's readers have called for a boycott of the entire oeuvre of HFM.

Using any unauthorised photograph is an odd thing for a magazine publisher to do. There are many examples of why this can be an expensive mistake to make:

"Last year, a California jury awarded one Russell Christoff $15.6 million for Nestle USA's unauthorised use of his face on the labels of its Taster's Choice instant coffee."

"...it's a loud wake-up call to clients and marketing agencies to make sure they keep on top of the rights of any photographic images that they use."

"Agencies are clearly wise to the potential pitfalls. In the US, where the stakes are generally higher and rights more complex, they will have more legal support."

The article quotes an ad agency art buyer:

"If you don't have the rights, you risk being sued...and we have a moral obligation to our suppliers."

The author of the article found some interesting information:






"...the Eiffel Tower, for example, requires permission if photographed by night, but not by day."










"....you might assume that if you're using stock shots, rights are cleared. But that's not always the case."

"In 2000, Lowe and Rex Features had to pay damages to the Cuban photographer Alberto Diaz Gutierrez, who snapped a famous picture of the revolutionary hero Che Guevara. He complained that an ad for a spicy vodka trivialised the historic importance of his photograph....his objection to its association with Smirnoff vodka led to a British court awarding him copyright protection as part of a financial settlement."

Insurance is offered by some image suppliers:

"Like other image banks, Corbis also offers all sorts of clearance services....The bottom line is that you need a publicity check for anyone who hasn't been dead for 100 years."

"...Getty Images.....also offers an insurance policy, called an image guarantee, which offers indemnity on rights issues to users of its images."

HFM has been in the press a bit recently.

In May:

The American brands include Elle, Woman's Day, Car and Driver, and Road & Track. Woman's Day, with a monthly circulation of nearly 5 million, is among the 10 top-selling magazines in America.

The most recent circulation figures are rather different. From the 2006 media kit:

WOMAN'S DAY PAID ADVERTISING RATE BASE 2006 Rate Base: 4,000,000
AVERAGE PAID CIRCULATION (for 6 months ended December 31, 2004) Total Average Paid Circulation: 4,209,130 Source: ABC Statement period ending December 31, 2004

Ad Age in February:

MEDIAWORKS: The average paid circulation at Woman's Day fell from 4,239,930 at the end of 2002 to 4,015,392 in its most recent statement. What's happening?
MS. CHESNUTT: That is, to me, a drop in the bucket. Woman's Day's female audience increased by 2.2% from 19,800,000 in Fall 2002 to 20,243,000 in Fall 2005, according to MRI.

The demise of Elle Girl in April, WSJ comments:

"...the latest sign of the brutal advertising environment that has affected the entire magazine category."

The advertising industry is changing dramatically. So is media use and the attitudes and behaviour of everyone. Every day there's another story about fraud in the media. The detective work exposing digital manipulation of images this past week has been astonishing.

The printed medium that positions itself as trustworthy and full of integrity AND DELIVERS will get my business and I'll bet there's a few bob in it for a brave, wise publisher.