Straight Up Answers to Complex Copyright Questions

In What's New, Industry News by Accessories Staff

Image: Shutterstock

Image: Shutterstock

Accessories chatted up two lawyers who practice media, advertising and marketing law– Deborah Adler and Joanna Summerscales from Davis Wright Tremaine LLP–to answer your questions about image usage and copyright.

Get ready for some tough love.

Question: I can’t afford to buy images off of a photo licensing site and these celeb photos are everywhere online! Can’t I pull images off the internet and use them on my retail blog?

No.  Regardless of how many other people are cutting and pasting photos from licensing sites, doing so could land you in legal trouble. Copyright law provides that in order to display a photograph, you have to have permission from the copyright owner. Photographs are not in the “public domain” just because a lot of different websites or newspapers are displaying them.

Well I can if I just delete the photographer credit, right?

No again. Never remove any photo credit to a photographer or photo agency that is next to or attached to a photograph. The Digital Millennium Copyright Act prohibits removing or altering information used to determine who owns the copyright of a photograph.

I like to show my customers that I sell jewelry trends the fashion magazines are showing on their pages. Can I scan the tear sheets and use on my website?

Sorry to keep saying no, but…. No. Copying tear sheets and displaying them on your website is the same as copying and pasting digital photographs, except in addition to claims from photographers, you can also expect claims from fashion magazines.

What if I’m watching the Oscars from home and want to blog about the jewelry on the Red Carpet. Can I take a photo of the TV and use those photos?

Interesting question, and the answer is maybe. You are the copyright owner of the photograph that you take, but the content you are photographing is owned by someone else. While you shouldn’t take photographs of other photographs and display them, a photograph of a 2-hour long broadcast, accompanied by commentary about the images, should be okay, as long  as you are not using the photograph to sell anything.

I’m obsessed with Kendell Jenner’s Instagram. Can I screen shot the images and use them? Isn’t this public domain?

Photographs on Instagram are likely not in the public domain.  What you are generally allowed to do is use the images for the purpose of commenting about them in a substantive way, so long as you are not using them to sell your own product.  It would help for the screen shot to include some of the surrounding webpage, to make clear that the photo was on Kendell’s Instagram page, and not have the images appear as large as they do on Instagram.

I want to gift a necklace to 20 bloggers and have them post reviews or photos of themselves wearing it. That’s legit, right? 

It’s legit, but you should instruct them to disclose that they received the item for free.  FTC Guidelines state that advertisers must both instruct bloggers/influencers to comply with the FTC’s Guides on Endorsements and Testimonials and the associated FAQs and have a plan in place to monitor them for compliance. The disclosures must travel with the post (e.g., if shared); they must be clear and conspicuous, and they can’t be left until the end.

XYZ celeb posted a photo of herself on Instagram wearing/using my product. Can I share it?  Use it on my website?  

Advertisers repost or otherwise use images of celebrities wearing/using/talking about their products at their peril.  When a celebrity’s likeness (name, image, performance, etc.) is used for a commercial purpose without prior authorization, this can give rise to a right of publicity claim, and these claims are on the rise.  For example, Katherine Heigl sued the drugstore Duane Reade for tweeting an image of her exiting one of its stores with a Duane Reade bag.  Sofia Vergara recently sued Venus Concept for using Vergara’s own tweets (which included photos) regarding its massage/skin-tightening procedures and products on its website and in other promotional contexts.

I’m having a contest/sweepstake.  To enter, users have to post images of themselves with my jewelry. Is that okay?

Yes, but consumers must clearly disclose that they have posted the photo because of a contest or sweepstakes, e.g., by using #sweepstakes or #contestentry.  The FTC has been very clear on this one, both in enforcement actions (Cole Haan) and the FAQ’s to the FTC’s Endorsement Guidelines.  Please note that if you are going to require consumer to post a picture with the product, you need to provide an “alternate means of entry” that does not require a product purchase otherwise the program would likely constitute an illegal lottery in violation of every state’s lottery laws.  (Other laws /rules also apply.)

 

 

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