Commercial VS Editorial Images

In the 21st century, images for advertisements are used everywhere and because of this, it can get confusing to know how to use someone else’s image for content creation. What is the difference between commercial copyright and editorial copyright? When do we need to ask for permission to use an image?

Content that is commercially licensed is used specifically for advertising and marketing. Permission is always required from the photographer and recognizable subjects. Content that is editorialized does not require permission because it is made for public use, however, it cannot be used to advertise.

To learn more about commercial versus editorial image licenses and the details of copyright explained in simple terms, continue reading!

The basics

Commercial and editorial images go a little further than general copyright laws. Copyright gives the rights of the image directly to the photographer, however, commercial and editorial images have specific requirements that must be met in order to be used legally.

So, why are there so many rules?

In our busy world, we want to make sure the original creators receive the proper credit for their work. Annoying? Probably. Ethical to the original creator? Most likely.

For creating content, there are situations where it is not feasible to shoot or use your own photos, especially when writing or directing other kinds of media. Commercial and editorial image laws give that freedom to specific media creators such as advertisers, blog writers and editors.

While there are specific restrictions set in place, this is the way our government can make sure photos are published and used fairly. Here is an easy-to-read guide on navigating how to use a photo legally for content creators of any kind. It can be complex, so take a deep breath, get some water, and let’s get started!

What are commercial images?

Commercial images are photos, clips, or illustrations that require permission in order to be used in any circumstance.

But it’s not just the original creator that you need permission from; permission is required from the property owners, artists, and any recognizable models in the image. There are also other restrictions such as what location the image was taken in.

If there are so many people to go through in order to use a commercial image, why would you want to use it in the first place?

To start, companies will usually buy a subscription from a commercial imaging website. This is because that website has already gone through the proper attribution process, so using another person’s image is not a problem.

Commercial images are meant to be used for advertising and marketing purposes only and are higher in quality. This includes websites, blog posts like this one, online advertisements, billboards, television, or streaming commercials. You cannot use an editorial or fair use image for advertising, but the public domain and commercial images can be. That is why sometimes commercial images are needed and we need to understand how the laws work. We will explain editorial, public domain, and fair use more in depth later on. (Source)

As I said earlier, there are specific requirements for commercial images.

Requirements for commercial image use

1. Permission is needed from any recognizable person in the photo.
   • You must sign a model release form to use that image. (Source)
2. Permission is needed from property owners of the location the photo was taken in.
   • You must sign a property release form to use that image. (Source)
3. No logos, trademarks, or other company names can be in the photo.
   • No other advertisements or clear logos can be used in the image, even with proper attribution. (Source)
4. No intellectual property in the photo.
   • No landmarks created after 1900, iconic products, architecture, illustrations of copyrighted characters, or zoomed-in text in a commercial image, even with proper attribution. (Source)

After commercial image requirements are met, there is another loophole you need to jump through.

There are specific kinds of licenses that need to be purchased depending on what you are using your image for. Once this lease is signed, you can only use the image for what is stated for in the document. This is called a ‘usage license’ and there are three kinds to choose from.

License types

1. Nonexclusive license: An image that can be sold through commercial licensing vendors, buyers, or yourself. This is typically used by advertisements.
2. Exclusive license: An image that has never been licensed commercially before and the client can use it exclusively. This is typically used by photographers. (Source)
3. Unrestricted license: No restrictions for what the image can be used for. (Source)

What are editorial images?

In the simplest terms, editorial images are the opposite of commercial images.

Editorial images are not to be used for advertising purposes and it can contain other logos, recognizable people, and iconic places. These images are typically used for news outlets such as The New York Times, The British Broadcasting Company, The Washington Post – you name it!

Editorial images are meant to illustrate and add context to journalistic articles, online resources and additional print publications such as textbooks. Fashion photography is a subcategory of editorial images because it assists a story for publication by showing the work of an artist.

Requirements for editorial image content

1. Check your company’s rules.
   • Some companies have varying rules. For example, Shutterstock does not allow posed or directed subjects for editorial images. In other words, the photograph must be candid. While other types of media such as fashion magazines need posed photography to assist their articles.
2. Must document a newsworthy event.
   • As mentioned before, editorial images are meant to provide context or illustration, not advertising. Remember, think of it as the opposite of commercial images.
3. No major alterations to the image.
   • Acceptable adjustments are copping, exposure, and black-and-white conversions. It must remain in the original spirit of the photograph. Again, double-check on the project being worked on for your company, but typically, editorial images are made to document “candid” and “real” life, unlike a saturated advertisement.
4. Proper location, description, and date attributions must be set in place.
   • Just because editorial images can be used under the proper licensing unlike commercial images, this does not mean that the image shouldn’t be attributed properly through photo and location credit. It is usually a necessary requirement to do so for journalists.

What is image copyright?

Now that we understand the difference between commercial and editorial image use, we can jump into what image copyright is. After all, that’s what commercial and editorial images depend on!

So, why is image and media copyright so important? What even is copyright?

The basics are this: when a photographer takes a picture, they own that image because it is their work. Therefore, no paperwork is required for the photographer to have the image copyrighted because it is an immediate and inherent right in the United States of America.

For a little bit of a history lesson, the first United States copyright law was actually enacted on May 31st 1790. It was a part of one of the first revisions of the Constitution, article one, section eight. (Source)

Moving back into the 21st century and focusing specifically on image use, a copyright transfer agreement has to be signed between the photographer and the client who wants to use the image. Without this agreement or (licenses such as commercial use or editorial use), you cannot use another artist’s photograph without permission because it is someone else’s work. In terms of legality, this would be a form of stealing.

The logic behind image copyright is not to make it almost impossible to create content for the modern advertiser, but to credit the art to the artist. Copyright intends to give freedom and protection for the original owner’s work. If a client purchases the copyright but does not purchase an exclusive use license, the photographer can still legally use their images wherever they want, even with competing advertisers. Because of this, companies that are taking their marketing campaigns seriously will usually purchase an exclusive license. (Source)

However, there are a few exceptions to copyright or exclusive licenses.

Public domain

Public domain is a type of image license that can be used freely and without permission from the original owner. It is not protected by copyright law because this image is now owned by the public. Because of this license, one can call it their own work. You can attribute the original creator if it is known, however, this step is not necessary.

Public domain qualifications

1. The copyright expired.
   • One of the most common reasons an image can become public domain is that the copyright expired. The copyright license for an image lasts for 70 years plus the lifetime of the original owner. If the lifetime of the owner is known, the copyright lasts 95 years after its first publication or 120 years after the creation, but whatever comes sooner is applied first. Factors such as if the work was published anonymously or not also apply. There are also different copyright protection depending on the type of media, but this applies specifically to images. (Source)
2. The copyright owner did not follow copyright renewal standards
   • Media works that were published in the United States before 1964 have now become public domain as mentioned before. You can renew your copyright during the 28th year after publication, but if this deadline is missed, this means a loss of copyright. Additionally, any pieces of work created on or after the first day of 1978 cannot be renewed for copyright protection. Companies, such as Disney, have a legal team that is on top of these kinds of issues if they want characters or images, not in the public domain. (Source)
3. The copyright owner decides to dedicate the image to the public domain.
   • If the image is specifically stated as “dedicated to the public domain” then it is free to use. As mentioned before, no attribution is required and can be sold regardless of the owner. Some authors don’t even put their names with their work intentionally. An example of dedicated images to the public domain is clip art.
4. Copyright law does not protect this kind of media.
   • Copyright law always can protect image use, so this last qualification does not apply. This public domain qualification does not protect short phrases, facts, and theories. (Source)

Fair Use

Another exception to copyright is fair use. Fair use means that the client has a limited range of authority for the copyrighted images of a photographer. Fair use technically gives you permission to infringe on someone’s copyright. However, the line between fair use and infringement is very thin, so make sure to do your research before contributing to fair use. This type of image protection is typically used for educational and critiquing purposes.

If you ask for permission to use a photograph and the creator says no, there still may be a loophole through fair use. As stated before (because this is important), always double-check the legality when using another person’s image. Sometimes you can use a photo when you think you can’t, or your post will be taken down when you think it’s ok. It is a crazy world in terms of legality and it is better to be safe than sorry! (Source)

So what should I know?

If you take away anything from this article, take this: Commercial images are used for advertising purposes only and editorial images are used for general media outlets only, not advertising.

Each type of image has specific restrictions for its users so make sure to go through the correct processes to avoid having your media taken down. Nothing is more frustrating than putting your heart and soul into a piece just to have it be infringement. Also, remember that any image that is taken is covered automatically by copyright, this applies to your work too! If it is unclear that the image is under commercial use, editorial use, fair use, or public domain, then assume it’s copyrighted and permission of some kind is needed.

In the end, it is always safe to go through a purchased license, or website, or take your own images. If you are a content creator and still confused about the ins and outs of copyright, then it might be time to take out your camera and learn a bit about design!