Editorial Images - Help

'Is it legal', 'can I do this' type questions and discussions.
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Scarlet88
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Editorial Images - Help

Post by Scarlet88 » Thu May 09, 2019 8:43 pm

Good Evening

I am really hoping someone can point me in the right direction in regards to whats allowed in regards to images marked as Editorial use only.

I need one single image, which i can locate on royalty free sites such as ShutterStock. We want the image to form part of our template on our photobooth print off for guests at a wedding. However the image is marked as Editorial use only.

I have read on for example Shutterstocks website what they can/can not be used for, and the main points i am getting is the image cannot be used to enhance/promote/market the commercial return of an item for example, but can be used for enhance a effectiveness of an item (blog/newspaper) etc..

The individual providing the photobooth is rather reluctant to use an image marked as Editorial use only, which i can understand, however i am trying to understand if i should be able to use the image in this scenario. He is concerned if anyone picks up the usage and goes after him for copyright.

The image is of a cartoon character.

We are paying the provider of the photobooth a set fee. This will not change regardless of the design of the print outs. I will be providing the template (including image) and he will essentially just transfer it into a file that the photobooth can read and print. We will then be giving the photos to the guests as a memento/memory. So there is no additional commercial activity taking place - the photoboth provider is being paid a set fee to provide the service, i am providing the template, and essentially he is just printing them off for my guests. The guests get them free, so i dont see where a commercial return or promotion takes place. The photo of the cartoon character will purely be in the bottom corner along with the date, its purely because its a favourite cartoon of my partner.

Can anyone shed any light where i sit in regards to copyright on this? I dont want to continue with the idea if it is clearly against copyright law.

Thank you

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AndyJ
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Re: Editorial Images - Help

Post by AndyJ » Fri May 10, 2019 7:23 am

If this cartoon character is a well-known one who features in either comics or on film (I'm thinking of characters like Elsa from Frozen or Batman etc) then the original copyright wil belong to a publisher of comics or a film studio like Disney. They exploit their characters through franchising and merchandise deals. To support their licencees the copyright owner will be rigorous in pursuing any unauthorised use of the characters, using both copyright and trade mark law. If this is the case then the photo agencies will no doubt have deals in place which limit use of the images of the characters to editorial only in order to ensure that they don't provide a backdoor route for someone to use a stock image in the context of an unauthorised product or service built around the character (eg toys or costumes).

Sadly I think that if the situation you have described involves one of those characters (as opposed to a completely different made-up character), then the photo booth scheme would probably fall within the sort of unauthorised use which the film studio etc wanted to restrict. This might be because someone has already obtained a licence from, say, Disney, for just such a use, and clearly they won't tolerate any unofficial rivals. The fact that your guests would not actually be paying for the photographs doesn't really alter the situation.

On the other hand if this is a private party it seems unlikely that the copyright owners will become aware of this use since it will involve a relatively small group of people who might, for instance, make the photos available on their social media. However there is still a risk involved.

I suggest that before abondoning the idea, it would be worth discussing your proposed use with Shutterstock or which ever agency you prefer, to see if their licence will cover what you want to do.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007

Scarlet88
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Re: Editorial Images - Help

Post by Scarlet88 » Fri May 10, 2019 9:32 am

Thank you for the reply, i will email ShutterStock i think and seek their advice.

On their site it explains for Editorial images - 'Usage allowance would have been different if you‘re designing the layout for a sports magazine and you‘re using the photo to illustrate a story about football playing techniques. In this situation, the photo was not being used to sell the magazine but rather to enhance the effectiveness of the story. Other mediums where you can use “editorial use only” images are newspapers, news broadcasts and other non-commercial applications.'

The image for us is purely for illistration purposes as its my partners favourite character, and to enhance the photo booth print. The genleman providng the photo booth wont recieve any additional revenue from us for using a template we provided, nor are the prints an advert for his business as they are more designed to be photos/memroies of the event for guests.

Thank you for your advice

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Re: Editorial Images - Help

Post by Scarlet88 » Sat May 11, 2019 7:51 pm

Where do we stand if we draw the image ourselves?

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AndyJ
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Re: Editorial Images - Help

Post by AndyJ » Sun May 12, 2019 7:44 am

There will be copyright in the appearance of the cartoon character as an artistic work, and so, because a drawing or painting you do youself is likely to include a substantial part of the copyright image, that would amount to infringement. There may also be infringement if the likeness of the character has been registered as a trade mark, although this is less likely.

Here is an example of a case about the infringement of the cartoon character Betty Boop. While the facts in that case were somewhat different to your situation, the judgment does show the sorts of factors a court will examine in such cases. There was an earlier case known as Mirage Studios v Counter Feat Clothing Co in 1991 which involved unauthorised costumes made to resemble those worn by the Teenage Mutant Ninja Turtles cartoon characters, but that is somewhat further away from the facts in your query.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007

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