- You should refrain from using free photos in general to avoid copyright issues, but especially if the photos depict copyrighted objects or trademarks. There are all kind of brands, logos and trademarks, like Apple, that you can not use whenever you want, not even to illustrate your blog or corporate publication. In many cases you will need permission first.
- The legal responsibility for using a photo in WordPress –or any online publication– and any copyright or trademark infringement associated with it, always falls on the publisher, regardless of them being unaware of the infringement.
- You can use pictures you take yourself on your publication, as long as you understand the implications of taking pictures of models, landmarks, copyrighted objects, brands/designs, trademarks and the responsibilities you automatically assume when doing so.
That’s right, my dear Rockstars. Apple is just one prominent example of many, many brands that are very protective of their brand identity and design. Why? These companies have a brand value associated to their designs, and the owners don’t want anyone sending a wrong message of their products or their company, nor using their brand identity in any way that hurts the brand’s image and affects potential buyers of their products.
This means that you cannot just take a photo of your Mac or iPhone to illustrate your blog, not even a photo of just the iconic company logo. And this is especially forbidden when you intend to use the images for commercial purposes in a corporate blog.
If you decide to use a picture that shows an Apple copyrighted or trademarked element in your commercial blog, or in any other commercial online publication, you could end up receiving a letter from the copyright owner. In the best case it’ll be a kind, but firm, take-down request. And at worst it’ll be a legal threat. With a company as huge and powerful as Apple, you should really think about the implications of taking this risk.
And the same risk applies to free photo resources around the web. These sites showcase Apple products and trademarks as part of their photo inventory pretty often. Most people taking pictures and uploading them to free photo sites are mostly not aware of the issues, and quite honestly, they’re not at risk like you are. As an online publisher, you need to know that you will always be held responsible, for the use of copyrighted material in your WordPress blog, while the creator of the photo or the one who uploaded it to a free photo site not necessarily will be. Yes, the photographer should be aware, but, what the heck, he/she is doing it for free anyway. You, however, definitely need to be aware of the legal requirements when you feature a brand or copyrighted design in a picture.
In the age of digital photo asset tracking, you can expect that copyright owners will pursue any copyright and trademark infringements even more actively than ever. You want to switch your corporate or editorial blog with WordPress to the legal side of the Internet? Then read on, rockstar.
When is Use of a Trademark Like Apple in Your WordPress Post Safe?
In many countries, Editorial use of a trademark in a news publication does not require permission, because of freedom of speech laws.
For example, permission is not required to use the Adidas logo in an article describing Adidas shoes, even if the article is critical of the company. Similarly, if you are making a documentary film on the history of the European sport shoe industry, you do not need permission to include the Adidas logo.
The overriding principle to be able to use a trademarked logo in any online editorial publication is that it has to be relevant to the article you are publishing. But it would not be fair and correct to publish a generic article critical of overseas shoe manufacturing practices and include the Adidas logo, unless Adidas was mentioned in the article.
When you cannot use a Trademark like Apple in your WordPress article?
The commercial use of a copyrighted trademark, for advertising, promotion, or marketing purposes requires a permission from the trademark owner.
Commercial use includes business-sponsored promotional activities –like public presentations for example– and this can easily become a conflict point for any online content created as part of a corporate blog, or anyone selling something in the current era of content marketing.
What is covered by Trademarks?
Trademark covers business names, slogans and other items used to identify a company or brand on the market. Trademark is much broader than copyright and can cover things such as names, colors, typefaces, designs, etc.
At the same time trademark is much more limited than copyright. The purpose of copyright is to protect against almost all unlicensed copying that is outside of fair use. Trademark is about avoiding confusion in the market, by restricting the use of brand identity elements. but it does not prevent copying.
The design of the iPhone or Mac from Apple is copyrighted, but the Apple logo, font, colors, etc are trademarked.
Are Logos Covered by Trademark or Copyright?
Logos are one of those spaces of intellectual property law where trademark and copyright laws overlap. As is often the case with all these legal questions — when using photos in your publication there are no white or black answers, but a lot of shades of grey.
Trademark protects things that identify a business in the market and logos are one of the most important ways to identify a business. Copyright protects the artistic production of an author, and many logos are so unique in their design that they are considered pieces of artwork, separated from its use as brand identification, and so also covered by copyright law. Like this, many logos qualify for both trademark and copyright protection.
Like this, a logo can have two forms of intellectual property protection on it. Trademark to prevent competitors and others from using it to cause confusion in the market, and copyright to prevent most other unwanted copying as explained in our article “10 surprising objects you can’t have in your photos in WordPress”.
So when you want to use a trademark in a photo, you can do it within your online publication, but you should refrain from creating confusion regarding the affiliation of the trademark owner to the image. If people believe that the trademark owner sponsored a photograph then there may be trademark infringement. For example, if the Adidas logo were visible on the shoes of a man published in a corporate blog related to the sport shoe industry, this could be seen as an attempt to borrow consumer goodwill associated with the Adidas trademark. That is why stock photo agencies clean photos with trademarked products.
Using logos with permission by the trademark and copyright owner is the best practice. Many companies provide logos for use on blogs and news sites with guidelines of how they can be used. But most big brands don’t allow you to use their logo without explicit notification to the owner. Even when they have the downloadable logo on their website and you follow their guide.
Interestingly audio logos (something like a corporate jingle for example) can also be copyrighted as described by Veritonic, but for the time being we don’t offer audio in PixelRockstar.
What to check when using trademarks, brands or logos in WordPress
When it comes to using images in WordPress online publications, it’s more likely to being sued for the use of a copyrighted item than for using a trademarked element.
To sue for trademark infringement, the trademark owner needs to prove that the display of a photo somehow had an economic effect on their ability to sell their product, or that it reduced the product’s value, or that the user of the photo saw an economic benefit from using it. The latest refers to the fact that the goodwill of a well-known logo can help someone increase the perceived value of their own product, and that is often considered trademark infringement. The use of trademarks in publications often does not require of a release, unless the use meets certain criteria, and in addition, the financial impact of the infringement has to be high to make it worthwhile to pursue the case through the courts.
If you have a photo that includes the Coca-Cola logo (or any trademarked item for the case), the main question is not if you took the photo, (which you are free to take in most countries), nor with the ability of the photographer to license the photo. The only relevant question is how the photo will be used in the publication, which then defines the use case (editorial or commercial). The use case definition depends on the trademark owner. If the use implies an association, or relies upon the goodwill of the logo, then a release will most likely be needed. That decision has to be made by the trademark owner and not the photographer or stock photo agency.
Why PixelRockstar will not offer photos with trademarks?
In most cases the safest and quickest option to use photos without having to worry about legal threats is the use of stock photography where professionals make sure to filter the right photos with the proper releases.
However, in the case of photos that include trademarks, it is impossible for any stock agency to have the necessary generic releases since the use of the photo will be defined by the publisher, and the need or lack thereof for a release will be decided by the trademark owner.
Usage of Trademarks and brands in the age of content marketing
A number of fairly complex questions determine when a photographer does – or does not – need to clear rights before photographing copyrighted materials and trademarks for non-private use.
The legal provisions vary from country to country. Photographers need to be aware of the most common legal restrictions as well as of the scope allowed by “fair use” exceptions. But each situation should be evaluated on a case-by-case basis and could be different in your country.
The general legal principles applicable to taking and using photographs – for commercial or/and editorial purposes – which feature copyrighted works – is challenging. Especially in the age of content marketing where pure editorial content is a business in decline and everyone, companies and people, have the capacity to communicate with their audience as part of a commercial strategy.
It is not only difficult to differentiate between commercial and editorial use for copyrighted work. You need to take into account also all the subtle legal differences between countries. Most lawsuits are filed against users of photographic material when used in advertising, company literature, catalogs etc. Though most countries have similar laws in the area of photography, important national differences exist. These cannot be covered in a general article, but we aim to share with you a framework you can use to approach these questions.
When no permission is required to use a photograph of brand, trademark or logo commercially or editorially
The response is somewhat complicated. It depends on a number of questions about the subject or object photographed, and about the intended use of the photograph.
Fair use or fair dealing
Copyright aims to strike a balance between, on one hand, protecting the rights of the copyright holder and, on the other hand, the wider public interest. Exceptions often enable photographers to reproduce copyrighted works without permission and they are enshrined in the concepts of fair use or fair dealing, in common law, or limitations or exceptions, specifically mentioned in national copyright law. They vary from country to country, and specific facts and circumstances will determine each case. But common exceptions from copyright protection, in simplified terms, include the following:
Copyright and Trademarks in public places
In some countries, permission is not required to photograph certain artistic works displayed in a public place –such as a park or similar– to be used commercially or editorially. These photos may also be published and sometimes even commercialized without infringing copyright. However, anything recognizable such as logos on buildings, billboards or any storefronts should not appear on photos specially for commercial purposes and in some cases, as we explained before, for editorial uses.
Photos to accompany news reports
Copyrighted and trademarks may be photographed to report the news.
Photos to accompany a review or critique
In most countries, copyrighted and trademark material may be used to illustrate critiques or reviews.
In most countries, permission is not needed to include a copyrighted work in a photograph if its is merely an incidental part of the background, or is otherwise incidental to the principal object/subject represented in the photograph. It may, however, be difficult to assess what is incidental.
What about trademarks or copyrighted items on free photo sites?
If you have used a free photo resource to find images for your WordPress site, you might have come across images of Apple’s Mac or iPhones. Or maybe you’ve found one on a site with Creative Commons licenses, like Flickr. Perhaps the fact that such image is available to download at these sites made you think it was alright to use them in your publication.
Guess what? Most people uploading or sharing images on free photo resources are unaware that they cannot use – let alone offer or share! – these pictures without a license from the subject’s copyright owner. The fact that an image is available for download with a Public Domain, Creative Commons or GNU license, does not mean it is safe to use in commercial online publications.
Truth is, all private property is subject to copyright, and you need a release from the owner if you want to use a picture including those commercially. Any image where private property is visible and recognizable might require permission from the owner, although law varies depending on the jurisdiction.
The good news – In most cases copyright will not be enforced, because the property owners don’t pay particular attention and don’t police the use of their image in commercial photos.
For a free photo service it is very unlikely that anyone has been checking any legal documents or status of the images people upload and share. This is why it is possible to find photos of copyrighted products from Apple and other brands. Commonly they don’t have a release to validate the use of the images. You can get into copyright issues quite easily when using these photos, depending on your jurisdiction and if the copyright owner is adamant about his or her rights.
Images with trademarked or copyrighted elements from free photo services are often used by online publishers and bloggers thinking they are safe to use. But! Even images covered by a Public Domain, Creative Commons Zero (CC0) or GNU license could easily be infringing property rights. Feel free to check our full Creative Commons and Public Domain guide for more details.
The safest option is to use paid stock photography for your online publication and to avoid free services in general, and you will notice that stock agencies don’t have Apple products as part of their inventory or photos of other famous brands.
And remember, the publisher is held responsible for any copyright infringement associated to the images they use. So copyright owner or the original photographer could always sue you if they identify an infringement to their rights in the picture you have used.
Difference between commercial and editorial use for photos
|Editorial Use: A property release is not needed for the majority of public news publications because of freedom of speech rights (which vary by country). Photo journalists almost never need to obtain property releases for images they shoot for news or qualified editorial publications, but this is very small and limited market.||Commercial Use: If you plan to use the photos commercially, this can mean for your corporate blog, newsletter or social media profiles of your company, you always need to make sure your photos are legally covered. And the easiest way to do this is by using stock photography agencies.|
The only photos you can use for free as a company are those you take yourself as long you take into account Model releases, Property rights and Brand Rights for all the subjects and objects depicted in your images.
The PixelRockstar Digital License difference
The PixelRockstar WordPress plugin has been created from the start to allow WordPress online publishers to easily search within WordPress for photos and images, download them to their Media Library, and add them to WordPress as a featured image or article image in a simple and quick way. Of course this includes photos in all situations of life that have been released to give your online publication the special touch.
Our custom made Digital License allows for online publishing, Social Media and Newsletter use. This means that when you publish your article, the use of the photo in your newsletter and other social media channels is covered by the standards you can expect from any stock photography company adapted to your needs as a WordPress online publisher.
Are you publishing your own WordPress corporate or personal blog? If you need images to illustrate your articles get to the safe side and use PixelRockstar! Focus on your content and we take care of all the legals for you, to make using images and photos in your online publication to be a joy without any hassle.
Why we’re doing this
This article is part of the educational series at PixelRockstar, to share our image knowledge with the WordPress community about the legal aspects of using photos in online publications. While we are writing this for the WordPress community, the content is relevant to any online publisher.
In our previous articles we have explained the difference between commercial and editorial uses when using photos in WordPress, the risks of using creative commons photos, the privacy and copyright issues when using photos with people, then why you cannot use a photo of the Eiffel Tower with the lights on and other landmarks to watch out for and finally 10 surprising objects that are copyrighted before you can use them in your online publication. We recommend to read the full series to be safe using photos in your WordPress publication. Read on rockstar!
Disclaimer: This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact an attorney directly.