Are news websites allowed to use photographs without permission for “editorial use”?

newswebsitesCC0A potential source of conflict between photographers and publishers comes from different interpretations of the term “commercial use.” A photographer may license a photograph with a Creative Commons Noncommercial license, expecting that personal blogs or nonprofit websites will feel free to use it (with attribution), but that a for-profit enterprise will contact the photographer to inquire about a paid license. However, a for-profit online newspaper may publish the photograph, claiming that this is not “commercial” use but “editorial” use.

The ambiguity comes from two different definitions of “commercial” use, both of which are commonly used. The first definition distinguishes commercial from noncommercial in terms of whether money is being made. In a Creative Commons survey of online content creators and users, more than 3 in 4 of both creators and users consider online uses in connection with advertising or where money is made to be “definitely” commercial. The second definition is used in connection with paid licenses for photographs. Photo licensing agencies such as Shutterstock and iStock distinguish between photographs that can be used for commercial use and photographs that are for “editorial use only.” In this context, the primary consideration is that photographs with the “editorial use only” designation may depict people, products or locations for which model releases, property releases or other permission has not been obtained. Therefore, those photographs cannot be used for advertising purposes (because they might violate the right to publicity, the copyright in the product or building depicted, or other rights) but they can be used to accompany a news article about the person or product.

A for-profit news website falls within this ambiguity. When such a site uses a photograph to accompany an article about the person or thing the photo depicts, it is “commercial” in the commercial vs. noncommercial sense, but it is “editorial” in the commercial vs. editorial sense. However, when the distinction between the two definitions is acknowledged, it should be clear that in these cases, the photographer’s copyright and the terms of any license must be respected. If a photographer takes a photograph of a politician at a public event, a news website does not have to get a model release from the politician before publishing the photograph accompanying an article about the event, but they do have to respect the photographer’s copyright and the terms of any “noncommercial” license. In other words, if they want to publish the photograph, they should contact the photographer to arrange for payment. However, news publishers have attempted to elide this distinction, so photographers should be prepared to assert their rights.

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