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| Zanotti New Campaign, SS 2013 with Anja Rubik |
Fashion companies typically acquire photographs for their advertising campaigns either by shooting original photography in-house, commissioning original photography from an outside vendor, or by licensing existing photography from a third-party vendor - often a stock photo house. Stock houses - the most well-known of which are Corbis and Getty - are companies that own or have licensed extensive libraries of original photographs, and further license or sublicense those photographs on a photo-by-photo basis to advertisers and other for advertising campaigns and other projects.
Original Photography
Fashion companies and their advertising agencies or outside creative services providers should be way of basing their original photographs on third-party photographs, including third-party photographs that the advertiser or outside vendor has used in a mock-up (also known as a composite or comp) that informally presents the look, feel, and general subject matter of the proposed final photograph.
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| Zanotti New Campaign, SS 2013 with Anja Rubik |
Certain stock houses permit (or as a matter waive their objections to) use of their photography libraries for preparation of comps. Experience indicates that stock houses are more generous in this regard where the party creating the comp is a valued stock house client. Advertisers should be aware that, absent such an agreement or understanding with a stock house, use of that stock house's photography (whether low-or high-resolution images) for comps may give rise to a meritorious infringement claim.
Determining whether that final (purportedly original) photograph has impermissibly copied and infringed the copyright of underlying third-party photography is a complicates legal issue and is best addressed by experienced intellectual property counsel.
Stock Photography
There are many stock photo houses, and their standard license agreements vary greatly often are nonnegotiable. Therefore, before launching an advertising campaign using stock photographs, advertisers must be certain that their art buyers or other personnel responsible for licensing those photographs have reviewed and understand the terms and conditions of the applicable stock house license agreements, and have confirmed that those agreements (including both the boilerplate terms and the precise scope of rights purchased) cover the advertisers' proposed use of the stock photographs. Because stock license are generally priced based on the scope of use, worldwide rights, for example, will cost more than North American rights only. Similarly, unrestricted print use will cost more than magazine use only. Use of a stock image beyond the use paid for can expose the advertisers to a claim of copyright infringement.
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| Etro SS 2013 Campaign, by Mario Testino |
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| Etro SS 2013 Campaign, by Mario Testino
Where the stock photographs to be licensed depict third-party-owned materials, advertisers should be particularly diligent in reviewing the applicable stock house license agreements and all informational materials presented with those photographs. Thus, stock photos that depict third-party-owned artwork, commercial signage, or recognizable human faces, for example, pose particular concern. Ideally, the license agreements or informational materials for these stock photos will state that the stock house has secured re;eases for all third-party content featured in the photos (and provide the advertiser with an opportunity to review those releases), and/or will fully indemnify the advertiser for any infringement or other claims by third-party rights holders arising from use of the stock photos.
More commonly, however, the stock house will not represent or warrant that it has any such releases, and certainly will not indemnify for any such third-party claims, and merely will convey to the advertiser a copyright license in the stock photos, leaving it to the advertiser to bear all risk of right of publicity, copyright infringement, trademark infringement, and other third-party legal claims arising from its use of the content depicted in the licensed stock photos.
Source:
"Fashion Law. A Guide for Designers, Fashion Executives, and Attorneys"
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