Use of Speaker photos (head shots) in event promotions/advertising

[JacquiU]

I volunteer with a small community (not-for-profit) group in England who organise monthly in-person talks for the public. There is a minimal charge for admission to cover costs. We only pay for speaker expenses. Occasionally a talk will be to promote a book, but mainly the speakers are local academics or other experts in their field who will speak on their subject. I mention this to demonstrate we do not come under ‘fair dealing’ exceptions, and also that we have a limited budget for licencing photographs.

We promote our talks online (currently our website, Facebook page and local ‘What’s On’ website) and occasionally as posters or leaflets.

Each talk is promoted with a photograph (head shot) of the speaker. We request a photograph from the speaker to use, and upload as a banner online. The events are generally kept as ‘previous events’ unchanged. The photo that is usually supplied is a personal snap shot, but sometimes a professional head shot. We have never been directed to an online library to licence a photograph.

We recently were charged by PicRights for the unlicenced use of a photograph several years ago that was actually supplied by a speaker. This highlighted a significant gap in our procedures and knowledge.

I am therefore creating a new policy and have looked extensively at the legislation and available guidance but I cannot find any specific guidance for using speaker supplied photographs. I have contacted other local organisations and businesses such as bookshops who organise events to ask how they ensure copyright adherence for the photographs (head shots) that they use in event promotion, and there appears to be a very limited understanding of copyright law generally!

Before I spend money obtaining specific advice from a lawyer, I would appreciate some advice from this group to understand better our position and what I need to do/ask.

1. Although we are not using any images for direct financial gain, I think that using a photograph for promoting an event constitutes a commercial use. Is this correct, or is there a difference between using an image in an advert generally, and using a headshot to promote a specific speaker using their professional knowledge for an event? Understanding the legal basis of usage is important to make sure we are within any licence.
2. The main issue I see is that we are relying on the speaker to confirm copyright, and so even if we gain permission from the speaker, how do we confirm that they have the right to provide this? The photo may have been taken by their spouse, or institution, or a professional shot. In fact, it is far more likely to have been taken by someone else, so someone other than the speaker owns the copyright. Even a professional head shot may have a limited use - such as for LinkedIn, but not Facebook. I am also concerned that the speaker themselves may not actually understand copyright law with respect to the image they are providing. So how much due diligence do we need to apply to ensuring we obtain permission from the correct person? Does anyone have any experience with this?
3. Does anyone have advice on how to apply the copyright notice, if supplied, to the photograph? If it doesn’t come with an imprint, I assume we cannot add it as that is editing the photograph. Is it sufficient to add it to the blurb that accompanies the photo in the event information itself?
4. Is there anything I don’t know?!

Additionally
5. Is there any published guidance for groups such as ourselves, or generally for event organisers, with regard to the copyright obligations of using speaker headshots?
6. Does anyone know a best practice, checklist or template agreement for this situation? Most of our supplied photographs will be personal and I understand that email confirmation may be sufficient. Is this correct?

Many thanks!

[AndyJ]

Hi JacquiU and welcome.

Can I start by saying that you are to be commended for being so proactive on this issue.

1. It is difficult to say conclusively one way or the other whether your use is commercial. Clearly the images are used to promote the event, and in theory, at least, more people might attend if the image is an appealing one. And there is a direct relationship between the number of people who attend and the amount of money you raise. Unless you have charitable status, that constitutes a commercial enterprise. But really I think the main purpose of using the image is to humanise the invitation to attend by putting a face to a name, in which case it really isn't commercial. The problem is that, should there be a dispute with a picture agency, much will depend on their interpretation of their own rules about what constitutes commercail use, and this does vary quite a lot. I don't think we need to concern ourselves about what a court might decide on the issue, which is where the finer points of law might come into play. Hopefully if your other safeguards are robust enough, you won't need to consider this aspect.

2. If a speaker were to produce a written statement to the effect that he or she has been authorised by the copyright owner to use the photo to promote themself, then they would be liable for any primary infringement if this turned out not to be the case. At most you would only be liable for secondary infringement, which because you relied on the authorisation, means that you would not be liable for damages and at most might be subject to an injunction not to repeat the publication - hardly a big deal. However as you say, most of the time the speaker won't be clear about the law or whether his/her is actually entitled to use the image he/she supplies. If your speaker is a published author, I suggest you contact their publisher for a portrait you can use because you can be sure that the publisher will only issue a picture over which they have full rights. For lesser mortals or where the publisher doesn't have a photograph you can use, you need to use maximum diligence. If the image comes with a credit for the photographer, try to contact them directly to confirm that the speaker is authorised to supply you with the image. If the speaker had arranged to have the portrait taken he/she should have a licence from the photographer (or spouse/friend/colleague) who was the actual author. This doesn't need to be a formal document, but ideally it should be in writing (an assertion in an email would be fine). Once you have some documentary evidence effectively absolving from primary liability then you are effectively out of the firing line. And just to add to the scenario where the speaker has specifically arranged for his/her portrait to be taken, whether by a professional photographer or any one else, there will be a presumed licence that allows the speaker to use the photographer for his own purposes. This is based the standard pratice in all social photography, including weddings, private events, passport photographs and so on. The corollary is found in section 85 of the Copyright Designs and Patents Act 1988, which limits the rights of the photographer over commissioned photographs taken for private and domestic puroposes.

3. If a credit or copyright notice is required by the copyright owner then this can appear anywhere which is convenient in the circumtances, and doesn't have to be immediately adjacent to the image. The copyright owner is entitled to this treatment by virtue of section 77(4)(a) CDPA.

4. Not sure I can answer this question as stated. However I think you have probably covered all the issues that you need to consider.

5 & 6. I am not aware of any published guidance or best practice for event organisers. The key is due diligence and provided you have good documentary support for your diligence then that should keep you away from any claims for primary infringement. As I have said, secondary infringement is less of a worry provided that you can show that you honestly believed that you had been authorised by the speaker to use the photograph, in which case the final clause of section 23 CDPA will apply (negatively) and remove any liability.

[JacquiU]

Hi AndyJ, & thanks for the welcome

Thank you for the comprehensive and clear response, it is extremely helpful. I have just one more question on the copyright notice. If we are not given a specific notice, should be include a notice saying something like 'Photograph used by permission' ? If so, do we need to state the person who gave us permission?

OK - two questions! But they are associated. Thanks again

Jacqui

[AndyJ]

There are two scenarios here. The first occurs when you rely on a fair dealing exception for what you want to copy or quote. In that instance you may be required to provide 'sufficient acknowledgement' of the source that you are quoting, copying etc. This doesn't apply to all the fair dealing exceptions (for instance sections 28A, 28B, 30A and 31 do not require any acknowledgement or credit to be given). Sufficient acknowledgement is defined in the Act (section 178):

“sufficient acknowledgement” means an acknowledgement identifying the work in question by its title or other description, and identifying the author unless—
(a) in the case of a published work, it is published anonymously;
(b) in the case of an unpublished work, it is not possible for a person to ascertain the identity of the author by reasonable inquiry;

Note that it is the author not a copyright owner who is named. And in all cases if it is totally impractical to provide the credit, it may sometimes be omitted. Since there is no direct contact here between the person wishing to take advantage of a fair dealing exception and either the author or copyright owner or their respective agents, the latter are not in a position to stipulate the type of credit.

The second case is where the person wishing to use the copyright work, or part of it, obtains prior permission, either directly from the copyright owner or by means of a licence issued by an agent. In these circumstances the authoriser is able to stipulate the exact wording which must accompany the copy, and this may vary widely. For example Creative Commons Licences require not just the author's name but the type of CC licence with a link to the online terms of that particular CC licence. Where no guidance is given in the licence terms, I think the minimum required is the name of the author. This because the author has the moral right, providing that they assert it, to be named, whereas there is no general obligation to name the copyright owner.

I don't think there is any legal value in using a phrase like 'used with permission', but it is obviously courteous and may cause a third party to think twice before copying your use of the image for their purposes. This is perhaps less likely where physical notices or posters are concerned, but more relevant to an internet noticeboard or Facebook group, for example. Too many people think that because 'they found it on the internet', or 'it came up in a Google search' that equates to something being in the public domain.