This post is also available in: Deutsch (German)
In order to earn money with stock photos or stock videos, creatives must first check that their content is free from third party rights. This can, for example, be copyrights, trademark rights or personal rights. What should you look out for? We have compiled a list of tips to help you.
Photographers and videographers find this topic challenging, with its complex laws and many exceptions. It is not always clear where the borders lie, for instance how unknown must a person be to not require a model release? Does one have rights to an illustration that may be hanging on the wall in a picture frame in the background? Or for a lamp beside a model?
Table of contents:
- Model Releases and Personal Rights
- Trademark Rights
- Property Releases and Freedom of Panorama
- Design Protection
1. Model Releases and Personal Rights
This picture is correctly accompanied by a model release contract (Cinemagraph by Thomas Brand).
A model release is needed for every recognisable person in a picture. Gallereplay will, however, accept stock submissions from artists if the person is not recognisable. But how do you draw the line? Since the legal texts on personal rights do not contain any example pictures, there is still some room for interpretation. Therefore, it is important to be very careful, making sure to retouch people out of the picture if there are any doubts about a model release contract. What many photographers don’t think about is that the recognisability of a person can also be given by his or her environment, for example a second person, a dog on a line, or a street in which he or she is located.
Can you see the person in the picture? A release is not necessary in this case as the person is not recognisable enough (Cinemagraph by Marco Woldt).
Model releases must even be sent in for self portraits. A model release can suffice for several pictures, providing all images are roughly described or appear as thumbnails in the release contract. Gallereplay offers templates for model releases in the artist login area.
2. Trademark Rights
The most famous trademarks are word marks, figurative marks or combined word and figurative marks.
A word mark represents a written word, for example the name of a company or a product. If found in a picture or video, it must be digitally retouched, either removed completely or made unrecognisable. It’s good to know however, trademark registration can only be secured if it is unique in relation to other companies or products. Therefore, words like “Hotel” cannot be registered as a trademark and do not need retouching.
Picture marks are, for example, the graphic representation of a logo. No matter how small they may seem in the picture, they should always be deleted.
No logo visible (Loop Video from Bella & Leon).
3. Property Releases and Freedom of Panorama
In general photos and videos taken in public places, e.g. town squares and parks, can be used commercially. In Germany this is called “Freedom of Panorama”. It becomes however no longer permissible if aids are used, like a ladder or a drone.
Non-public spaces include anything from concert halls and stadiums, sporthalls, museums, supermarkets, schools and universities, zoos, castles, stations, airports, to hospitals and more.
Sometimes it becomes difficult when it’s not clear where the photographer has taken the picture from. For instance if a photographer wanted to capture a private house and it is uncertain whether they have taken the picture from the pavement or from the private property itself. In this instance gallereplay would generally ask for a property release. Specific templates can be found in your artist area. Houses and buildings from the inside, as well as undeveloped private land also require a property release contract.
In addition, it is not conclusively clarified whether using a private plot of land is permissible even when the picture is taken from a public space. What if your own house appeared in an ad on Facebook without your consent? It may well be that these laws are tightened up again in the future.
Therefore gallereplay recommends to only use panoramic freedom to show several houses and buildings in a picture, so that no single house is the focus.
A row of houses and a canal in Amsterdam (Cinemagraph by Floris Kloet).
Unfortunately there are also buildings and houses that are protected by laws of other countries and cannot be shown in the panorama, like the Atomium in Brussels. Additional research is therefore necessary for each individual case.
4. Design Protection
Designers can also register their creations as property rights, otherwise known as “Design”. If a design is successfully registered, a designer can then have the possibility to become the sole user of their creation with all production rights, such as making, importing or using the product in which the design is incorporated. Third parties will need authorisation and potentially also have to pay a license fee for any imitations.
This protection lasts a maximum of 25 years and can theoretically be many things: cars, clothes, lamps, shoes, vacuums, glasses etc. In practice, however, this is only possible if the designed aesthetic appearance actually appears unique. That means that the overall impression of one design must vary from another.
If, for example, you were to have a cooking pot in the same shape and color that you have seen from other suppliers you can be sure that it has no registered design. A lamp, however, with a very unusual shape would be more probable. Should this lamp be used in stock material, it could violate the rights of third parties. Therefore, it is better not to include fancy design creations in your own photos and videos, of which you are unable to exclude registered property rights.
The cups and the teapot are generic enough to be used as objects in a stock video (Cinemagraph by Ashraful Arefin).
In contrast with the design protection law the copyright applies from the completion of work and doesn’t need an official registration. It protects the author’s intellectual property and also includes pictures and videos.
Even if we don’t know whether a creation is personal and intellectual, and therefore protected by law, it is still important to respect the work of others. Besides photos and videos, this can be illustrations, book covers, album covers, art and much more.
What about a stock photo or stock video with a picture hanging on the wall behind the portrayed models? The artist has clearly also made an effort in creating their work.
It could only be permitted if it is deemed an “insignificant accessory” and the element is represented lightly enough. Nethertheless gallereplay recommends to take no risks here. For this reason the picture with the illustration should be moved to one side, blackened or edited out afterwards.
When a piece of work remains constantly in one place, for example a statue, you are allowed to portray this in your photos and videos. A further example is the Eiffel Tower, which you are only allowed to portray by day. However, by night there is a light show, which is then seen as a “non permanent” piece of work, which cannot be commercially used.
One is allowed to use the Eiffel tower without the light show as a stock video (Loop video by Francois Beaurain).
Whilst playing by the rules is legally required, there is always the individual’s artistic freedom to give photographers and videographers more content options. But what is the point of this leeway when a stock video customer wants to be absolutely sure and does not license videos in which even the smallest elements in the image cannot exclude the rights of third parties? We see it positively, “Keep it simple!” is an important rule in photography. If we exclude elements that are unimportant for our image statement, it makes it more tidy and directs the focus to the element that we want to represent.
Gallereplay emphasises at this point that it is non-binding information and doesn’t replace further research, as well as the advice of a legal advisor.
You make stock videos and you haven’t yet signed up for gallereplay? Find out more here! What’s more: you get personal feedback from our moderators on every submission. In doing so, we also deal with possible legal infringements.