Question of editorial use of photos

[robertl22]

What is the name of your state (only U.S. law)? Texas

Hey! I'm starting a Fantasy Football blog. I was to use editorial photos I purchased from Dreamstime.com (a royalty free image site) to illustrate the entries and articles I write. They were taken during NFL games and contain NFL players, NFL team logos, etc. Is this legal? I mean, I bought the rights to these images, but I heard that it does not matter because the NFL owns the logos in them. Is it considered editorial use? I have ads on my blog if that matters. They won't be connected to the photos in any way, and I'm not going to use the photos to advertise or sell the photos, I'm just going to use them in my articles to make them visually appealing. I assumed that using photos in my sports blogs/articles was considered "editorial use" but I've heard that because I have ads on my site, it's indirectly using them commercially....

Is this legal? If it isnt, why does every single Fantasy Sports site have NFL images on their website when they have 5x the amount of ads as I do and they clearly disclaim any involvement or ties to the NFL, so they obviously dont have their consent.

thank you so much, this has been frustrating me to no end What is the name of your state (only U.S. law)?

 

[FlyingRon]

Did you not read the license agreement with DREAMTIME? Their license only extends to the copyright in the photograph. You're limited on the things with logos to proper editorial use and even then you have release issues.

Using the ones from the editorial section for use on your non-editorial website, is a violation of not only your license from dreamtime but also may run you afoul of the NFL, NFLPA, and the teams involved. The fact that others are getting away with it is not going to be a defense if you get sued.

Use the non-logo'd ones from other sections of their library.

 

[quincy]

Generally, the major legal problem a person will face when using someone else's photograph to illustrate a story will be with copyright infringement and not trademark infringement. When photos depicting trademarks are used for informative, illustrative, non-commercial purposes only, there are generally few restrictions placed on their use.

If you are sure that you have obtained the proper permissions to use the copyrighted photos (ie, make sure that Dreamstime actually has legitimate copyrights in the works to pass on to you and that the rights passed on to you adequately cover your proposed uses, as FlyingRon has advised), then using on your blog a photo that depicts trademarks would not (ordinarily) cause a trademark infringement problem.

You should just make sure that the way the photo is displayed, with the person, people or trademarks pictured, does not give consumers the impression that those pictured or that the trademark holder are affiliated in any way with your blog. It should not appear from your use of the photo that you are trying to appropriate the publicity rights of those pictured or the goodwill associated with the mark (ie, trading off a famous image or a famous trademark to attract consumers to your blog). Avoid all use of the photo in the marketing, promotion or advertising of or on your site.

In addition, when using a photograph to accompany what you write, it will be important that what you write does not create a false impression and is not defamatory, exposing an identifiable person or persons in the photo, or the trademark holder, to hatred, ridicule or contempt. You must be careful with any blog content that can affect the reputation of the person or persons depicted in the photograph or that can tarnish the image of the organization that holds the trademark that is pictured. If your blog is to be of a critical nature, it can be especially wise to have the content reviewed by a professional prior to publication.

Finally, when photos are used that depict another's trademark, this can attract the attention of the trademark holder and, more importantly, the trademark holder's attorney. NFL attorneys are especially vigilant and are not shy about sending out cease and desist letters to, or threatening to sue, anyone using NFL marks (whether a legal action has merit or not). For this reason, even when permission is not necessarily required, obtaining written permission can be wise and is generally advised.

Having a publishing law professional preview your use before publication can help eliminate for you any problems your blog posts with accompanying photos may otherwise create. Or, as FlyingRon wisely advised, using "generic" photos that do not show identifiable people or identifiable trademarks can help avoid most legal issues entirely.

As to your final comment about how "everyone else" uses photos on their sites - they may have obtained permission, they may not have attracted the attention of the trademark holders, they may be using the photos in a perfectly legitimate and legal way. Disclaimers do nothing to prevent a lawsuit but can mitigate damages in the event of a lawsuit loss.

Basing what you do on what others are doing is never a good way to operate legally, as what others are doing may be violating a law and it could very well be that they have just not been discovered doing what they're doing yet.

 

[robertl22]

flyron

yes I did, I'm asking if my blog is considered a commercial site..

does having ads in some places on my site make it commercial, or is using pictures in my articles that i write still considered editorial

 

[robertl22]

one is example is fftoday .com

they have nfl pictures but they also have ads on their site

is that editorial or commercial

 

[quincy]

robertl22, the answer to your question about your own Fantasy Football site would be "it depends."

Without seeing how your site is set up or reviewing what your blog content is, it is impossible for any forum member here to tell you if your use of a photo with your blog can be seen as a commercial use.

It is unlikely to be viewed that way if the sole purpose of using the photo is to illustrate the content of a non-commercial blog post. Your major worry would be with ensuring you have obtained the proper permission to use any copyrighted photo in the way you intend, and then making sure your blog content avoids infringing on any other rights (such as the privacy/publicity rights of the individuals pictured) and avoids harming reputations (of the individuals pictured, of the trademarked entity).

If, on the other hand, your blog is about sports jerseys you are marketing and you use a photo of an NFL player wearing a sports jersey to illustrate your blog, that is likely to be viewed as a commercial use of the photo and a violation of the publicity rights of the NFL player and an infringement on the trademark holder's rights.

Almost every publication will rely on advertising revenue to exist. Newspapers do, for example, and yet they use photos with some frequency to illustrate their news stories. Just because a publication (on the internet or otherwise) has advertising, this does not make the published content commercial and this does not make every picture used in the publication an advertisement or a commercial use.

The Fantasy Football site you referenced uses photos to illustrate the blog posts and the site has advertising. If the photos that are being used to accompany the blog posts have been properly licensed for use on the site (ie, the copyright holder has given the site permission to use the photos in this way), there is nothing legally wrong with how the photos are used, this even though the photos depict individual players and the player's team trademarks. This is not considered a commercial use of the photos. This is not considered an infringement on trademark rights. This is not infringing on the publicity rights of the players pictured. The ONLY problem would be if the copyrighted photos were used without permission of the copyright holder (well, and if the content of the blog posts crossed some legal boundary, which the blog posts on this site didn't appear to on quick glance).

With that said, if you are concerned about how to use purchased photos on your site to illustrate your blog posts (after ensuring you actually have the right to use the copyrighted photos), you will probably feel more comfortable having your site reviewed personally by a professional in your area. This is not only a wise thing to do, for a new venture such as yours, it is also advised. The professional can point out any areas on your site or any blog content that might be legally problematic (for example, not a clear separation on your site of blog post from advertising), so that you can work to correct these areas.

You are very wise, by the way, to be concerned about the legalities before you publish. Many people aren't, and they wind up coming to this forum only after they have been sued.

 

[robertl22]

thank you so much, that was the best answer ive received


about your example with sports jerseys, wouldnt that only be illegal if they were selling jerseys?

if they had articles about which jerseys looked the best or articles about how jerseys are made wouldnt that still be editorial?


and yeah I contacted someone from Getty Images and they said as long as the photos are used editorially, additonal ads on the site wouldnt affect it.

 

[robertl22]

where exactly or what exactly would I search to find a professional in this to view my site? what kind of professional would I look for?

 

[quincy]

Thanks. And you're welcome.

About my example on sports jerseys, it can be a legal risk to have any photograph of an identified person, or of a recognizable trademark, accompany any article about products or services that are marketed for sale, this even if the article itself is only commenting on the products or services that are for sale and not actually marketing the products or services. If a photograph is to be used for an article like this, a generic photo is advised.

Trademark law centers on consumer confusion. If there is a way an average consumer can reasonably be confused as to the origin of a product or service, or confused as to who might have an affiliation with a product or service, then a costly lawsuit can result. The placement of a photograph of an identified person or recognizable trademark next to an article about a product or service can lead to such consumer confusion.

Your statement in your first post said you wanted to use photographs to add visual appeal to your blog posts, and that is generally why photographs are used with written material. Blocks of text can get boring (illustrated nicely by my block of text here ). Photographs that accompany an article or blog post, however, must be chosen carefully so that they illustrate or add something of value to the text without mistakenly confusing consumers or inadvertantly infringing on any rights.

Again, consulting with a professional in your area can help relieve you of any worries you may have about your blog. You can contact the Texas State Bar Association for direction on finding an attorney well-versed in publishing/entertainment law or copyright/trademark law (an intellectual property attorney). There may be free legal aid clinics or a law school near you that can help with a review, as well.

This review of your website plans now can help you avoid problems with your website in the future, so I think it is wise to get advice prior to publication. You may also wish to check out the following website which offers some good tips for bloggers: http://www.kcnn.org/legal_risk.

Good luck.


Edit to add:
I probably should add this caveat: Even if your use of certain photographs on your website are perfectly legal and the content of your blog posts are perfectly legal, nothing can really prevent someone from suing you anyway (or threatening to sue). The best you can do is to keep from your blog site those things that could make any suit filed against you a successful one.

 

[robertl22]

ok one more question haha


what if I didnt wanna take any risk of using actual photos so I got an artist to draw cartoons that look like the actual NFL players and used those as illustrations instead... i would tell the artist to leave out the logos of course.

any risk in that? if a cartoon looks enough like someone can i get in trouble even if there is no logo?


seems like you can get sued for everything these days. i just dont want worries when i sleep.

 

[Proserpina]

ok one more question haha


what if I didnt wanna take any risk of using actual photos so I got an artist to draw cartoons that look like the actual NFL players and used those as illustrations instead... i would tell the artist to leave out the logos of course.

any risk in that? if a cartoon looks enough like someone can i get in trouble even if there is no logo?


seems like you can get sued for everything these days. i just dont want worries when i sleep.

As with many (most?) things, I'm also curious about this.

Take the most wonderful Troy Polamalu (look, I know - I'm pathetic. I'm a girl, it's Superbowl season even though the Steelers are out, bear with me please ). His cartoon likeness would likely include an extreme exaggeration of his hair. It would in all likelihood be very recognizable, yes?

How would this work, quincy?

 

[quincy]

Hmmm. And I've always thought that Troy Polamalu looks a bit like a cartoon in real life.

Cartoons or caricatures of real people, especially of famous people, can still run afoul of copyright laws and publicity right laws. It depends in large part on what the cartoon is based on (ie, a copyrighted photo of the person or from live action) and the purpose of use (ie, commercial, educational, editorial).

As a most general rule, you cannot use any copyrighted photo without permission from the copyright holder and you cannot use any image of a person without permission from that person. There are, of course, many exceptions to this rule, some of which were earlier discussed.

Cartoons or caricatures of a person are often looked at as "parodies," which is an area of law that falls under "fair use" and free speech. However, both parody and fair use can be difficult to judge prior to a court ruling on the specifics of use. And, if a court is ruling on a use to determine whether the use can be seen as a parody and is a fair use or not, that means that someone has been sued. You want to avoid this.

A case that you may find informative and that is somewhat on point is Cardtoons v Major League Baseball Players Association, 838 F.Supp 1501 (ND Okla, 1993); 868 F.Supp 1266 (ND Okla, 1994); 95 F.3d 959, 976 (10th Circ, 1996). In this case, trading cards were created using caricatures of Major League baseball players. The court ruled that the trading cards were a parody, "an important form of entertainment and social commentary," and an expression of free speech deserving First Amendment protection.

Of course, in the case mentioned above, the use of the player-caricatures was a commercial use, which spurred the legal action. For your use of caricatures, if used to accompany blog posts of the sort already described, then the use could still be considered "informative" or "editorial" in nature.

But, the legal risks of using a cartoon over a photo would essentially be the same. You cannot use the caricatures of a person in a commercial manner (ie, using the image on a product or to advertise a product or service) without the risk of attracting a publicity rights infringement suit. And if the caricature is based on a copyrighted photograph and you have not obtained permission to use the copyrighted photo, you run the risk of a copyright infringement suit, where it would be up to a court to decide if the use of the photograph for your own work was transformative and a fair use.

Finally, when you have an artist drawing cartoons, the artist would hold the copyrights in the drawings (absent any written and signed agreement to the contrary) and you would still need to get the proper permissions from the artist to use the cartoons for your blog.

In other words, there may be no benefit to you in using caricatures over photos. The legal risks remain essentially the same. You can be sued if proper permissions are not granted and proper precautions are not taken. Then again, you can also be sued EVEN IF permissions are provided and precautions are taken.

This is a pretty litigious society we live in. The best anyone can do is to avoid as much as possible pissing anyone off.

(and, with that thought in mind, I apologize to Troy )