A Tricky Stock Photo Trap: Beware of “Editorial Use”

Is a blogger a journalist? (No)

One way to avoid infringing on others’ photo rights is to use stock photos. But remember: When you download a stock photo or illustration, you haven’t purchased the image itself. You’ve purchased license to use it under specific terms and conditions.

Most people never bother to read those terms. Most of the time, that may be okay. You probably already know not to re-sell the image as your own, use it in an act of terrorism, or otherwise violate basic “do unto other” principles.

But have you ever noticed that some stock photos are marked “editorial use”? For example, navigate over to Shutterstock, search on “Warren Buffett,” and open any of the resulting hits. To the right of the image, not very prominently, it says: “Editorial use only.” Hovering over the teensy question mark to the right offers this not-so-clear guidance: “Editorial content, such as news and celebrity images, are not cleared for commercial use. Learn more on our Support Center.”

Go ahead and learn more. But I’ll tell you what it boils down to: You cannot use the image unless you’re a journalist. And, no, your firm’s blog or e-newsletter doesn’t make you a journalist.

So close, so far away

There are two reasons this is frustrating. It eliminates almost any stock photos that depict well-known people (such as Buffett, actors, political figures and sports heroes) as well as many identifiable places (like the New York Stock Exchange or the Empire State Building, which are trademarked properties).

In other words, many of the images you’d most love to use are the least available. Worse, many stock photo services that offer editorial use images will let you download it anyway, no problem. But if you then use it as you please, you risk violating the terms you’ve agreed to.

A lawyer confirms my hunch

Personally, I’ve been avoiding editorial use images for years. I’ve seen plenty of others blissfully playing with photographic fire, but after reading the fine print for myself I decided to err on the side of caution. That said, I was never sure I was correct. I never could find a definitive answer out on the Internet, and the legal disclosures were always enigmatic.

Recently, I had the opportunity to ask Intellectual Property/Trademark Attorney Donna Schmitt of Armstrong Teasdale for her opinion on the subject. Better yet, she generously agreed to let me share her comments with you (emphases are mine):

My question: “Many companies publish monthly informational newsletters that are posted on their websites and/or on their blogs. Is use of stock photos marked for “editorial use” in these forums appropriate, without getting a permission?”

Donna’s answer: “While company newsletters/blogs are informative, they may not fall under the editorial exception for fair use of copyrighted works. Newsletters put out by for-profit companies are usually viewed as a form of advertisement/marketing and not news-reporting. You should secure proper permissions for any photos you use in your newsletter to avoid risks of infringement. Many stock photo providers scan the internet for misuse of their photos and send demand letters to bad actors, seeking monetary compensation for use.”

By the way, this same advice likely applies to those of you who hail from abroad. I asked Donna about that too, and she explained: “Many countries have signed onto the Berne Convention treaty, which recognizes copyrights across borders and gives reciprocal rights to copyright owners from one country to another.”

Royalty-free sites, like unsplash, fall under the same protections. Read their terms of use carefully and you will see that their policy is caveat emptor.: If you use, for example, a picture of a celebrity or public figure, you do so at your own risk (whether or not the images are clearly marked as editorial use only).

So there you have it. I would have loved to have been proven wrong so I could start decorating my posts with images of my favorite hot celebrities. (Photos of people also raise rights of privacy and publicity issues, by the way.) Instead, I now know I’ve been right to be cautious. I recommend the same to you.

Wendy is the founder of Wendy J. Cook Communications, LLC, which offers writing, editing and related services to a worldwide community of fee-only, evidence-based financial advisors in the U.S., Canada, the U.K. and elsewhere around the globe.

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