James Dean, Martin Luther King, the Eiffel Tower at night– there are faces and places in the world so utterly recognisable, so laden with meaning, their value cannot be quantified. These are icons –and a great image featuring one such icon can catapult a commercial campaign onto a different level.
However negotiating rights for such an image can be a minefield. Even if a rights holder such as Getty Images holds the copyright of a photograph, a person depicted in the picture may also have rights to his or her own image, as does the rights holder for any trademark or logo, work of art, or protected building or landmark.
Nicola Corbett of the Rights & Clearance team at Getty Images explains. “If a commercial client wants to license an image for which we do not have model or property releases, we look at the image in great detail. Can people be identified in the image? What about buildings? Are there any logos or trademarks visible in the image? If so, our customers should begin looking in to the rights required for their specific use.”
Who has rights to a likeness?
If the figure in question is a well-known person, it may be relatively straightforward to find a representative, but, as Nicola points out, an image from the extensive Hulton Archive may feature “someone’s grandfather photographed in the 1950s”. The Rights & Clearance team will then make every reasonable effort to identify the person depicted, determine if that person (or his or her heirs) has rights to the likeness and contact them or, if they are deceased, find any surviving family or rights-holder, to seek permission on behalf of our customers. Generally, a similar process is applied to addressing any other rights that may be implicated in the image.
Different countries, different laws
The nature of this work becomes ever more complex depending on where the photograph comes from, as the law varies widely from country to country, and in the United States, from state to state. In the UK, for example, there is no single law which protects a person’s right to their image. However, if the image is used commercially, the subject may sue under the law of ‘passing off’, if a commercial use suggests they endorse a product or service when they do not. In the US, many states do protect personality rights, by which a subject has the right to protect their likeness in images. However in some states, this right ceases when the person dies, while in others, it persists after death. A resident of New York has no personality rights after death, while in California the right persists for 70 years after death.
Doing the research, taking the risk
It is an incredibly complex field, and definitely one in which expert help makes all the difference. The Rights & Clearance team at Getty Images have obtained clearances for some unique uses, but they are also able to offer an Image Guarantee (enhanced indemnification) in certain circumstances. “We go through a rigorous process,” Nicola explains, “and if we can demonstrate that after reasonable due diligence there are no apparent valid rights holders, we may offer to take on the risk of claims relating to the subject of the image for the customer. This means that if there is a claim, we take legal responsibility.”