Last night I received an email from Shutterstock saying a prospective buyer wanted to licence for commercial use a video which I had marked as editorial only. The customer would be aware that they had to obtain any necessary releases and  I, as the contributor, could give this permission 'at no risk to you'. The email had a link to an online form for me to complete.

I enquired further about the background to this. The clip concerned was of a Virgin Trains Pendolino leaving a station in NW England, with no visible  people.  I could have possibly have considered agreeing to the purchaser being given permission to seek out the necessary clearances to use this particular clip as the releases needed were fairly clear (Virgin for the train, Network Rail for the station).

However, the on-line form didn't relate to just this clip, but gave Shutterstock permission to sell for commercial use ANY of my editorial stock to ANY customer without further reference to me, providing the customer was clear that they had to obtain any necessary releases first. This seemed to me to open a great big can of worms. Not least is the question of whether Shutterstock's assurance that there would be 'no risk to you' in giving such permission would stand up. I've come across stories of photographers being sued for their image wrongly being used commercially, even when the photog had no control over that usage.

I declined Shutterstock's request, being more concerned about my long term peace-of-mind than making a $50 clip sale.

Has anybody else come across this kind of request from Shutterstock and am I being unduly cautious?

I haven't come across a request like this before, but I do think caution is the wise choice in this situation.

Saying that the transaction (even if it were just this one) is "at no risk to you" is not the same as committing to pay for 100% of all legal expenses, hire a lawyer on your behalf, etc. should there be a lawsuit if the client didn't get the required permissions. And committing in a binding legal contract, not just an e-mail from some staffer that wouldn't commit the corporation if they later backed away.

It's not identical, but the case of the stock photograph taken over the Dancing Feet sidewalk art showed that the artist can and did go after the photographer as well as the agency and removing the item from sale didn't resolve anything (the photographer ended up settling, I think, because it got too expensive to defend).

Then when you add that they want a blanket "trust us" permission for future sales, I think you'd have to be very, very trusting to say yes. I wouldn't.

In all cases, the final user is responsible for the use. Not the photographer.

Unless someone here has deep pockets, anyone filing a lawsuit wouldn't even bother and if they did, what can they get? Deep Pockets are the targets, not us.

In other words, the Editorial restrictions on video or images are not to protect us, but only for the benefit of the agency and the customer. We aren't responsible for misuse.

The only time we would be involved is a fraudulent release or claim of allowable use that is false. Illegal access or restricted photography situations, without permission.

Not, for listing honest facts and the client makes some other use decision. In other words. Take the money.

Yes I understand, society has become sue crazy, what ever happened to just taking things on the surface?

I couldn't sleep longer peacefully, if I would sign it. Who knows what happens in future, are buyers serious etc.

I'm not really sure what everybody's problem is... taking pictures of things almost never is a legal problem. It's not illegal to take a photo of an iPhone or a McDonald's restaurant. It's the publication of images that is a problem. And that part is always the buyers' worry and not yours.

The only really problematic images would be those that you were not allowed to take in the first place like in locations that require photo permits (start with professional sport stadiums, museums etc.). But those images rarely make it through the microstock inspections anyways because they will ask you for a permit even when you upload them to the editorial sections.

The whole "editorial use only" question came up only because microstock at first offered the (quite often inexperienced) buyers the assurance that all images are safe to use. Only when the demand for "problematic" images (containing logos etc.) became big enough from editorial users like blogs and news sites the microstock sites came up with these "editorial only" sections. However, the stock agencies are - as before with commercial images - always staying "on the safe side". There are a lot of "editorial only" images that also could be used for commercial purposes, as long as it's not against competition laws etc. There is no problem with someone selling iPhones to use a licensed image of an iPhone, for example. However, as the license terms with microstock are very broad, the agencies are restricting the access to those images to "editorial only", so it's the buyers responsibility to check if they are allowed to use the image or not. Professional image buyers were always used to that themselves. Have a look at what Getty and Corbis are licensing as unreleased "commercial images" which never would be accepted in microstock. They just mention "this image is not released but a release may not be required".

As a contributor, with commercial images, you also state that "this image does not violate the rights of others". When you upload an image to an editorial section, you do NOT state the same. From my point of view, as a contributor you are on the safe side when someone uses an image you uploaded to an editorial section because with that you already make a clear statement that the image contains unreleased content and it's the buyers risk to use it.

I wouldn't have any problem allowing any image user to license any of my images for whatever they want to if they want to take the risk.

I'm not really sure what everybody's problem is... taking pictures of things almost never is a legal problem. It's not illegal to take a photo of an iPhone or a McDonald's restaurant. It's the publication of images that is a problem. And that part is always the buyers' worry and not yours.

Don't you remember that Yuri got sued by a big eye glasses manufacturer for letting his models wear their glasses in (closeup) photos?  It wasn't the buyers who bought his images that got sued ... 
Can't say how the story ended, as Yuri stopped talking about it after his first post.

You are not a lawyer Michael, I would be very careful to generally believe you are not liable or safe from harm if you upload content as editorial.

And the biggest problem of a court case are the costs and time involved.

Even if you eventually win the case,you might go bankrupt inbetween, because you cannot afford the running fees.

The question: do you believe anyone could take your material as an incentive to sue you in any way, even if they were in the wrong...then I wouldn�t allow my work to be used otherwise.

But I would make that decision very carefully for every individual case.

All true, of course. There always is a risk to get sued. Actually I have heard of cases where photographers, agencies and customers get sued by models despite them having signed a model release... actually I have heard more of those stories than any others. So if I want to avoid any risks, I can't upload images containing people anymore because I could be sued one day?

And as I said, I am talking about "editorial only" images specifically. Those where I as a photographer already say by uploading it to an editorial section "there is something risky in this image, use it only where allowed".

And we are talking about a scenario here where a customer already says "I know the risks and want to use it for my purposes anyways at my own risk".

Yes, I am not a lawyer. Even if I was, anyone would be stupid to act on my advice since not even a lawyer can know about all legal situations in all countries. So I am just saying: I am not worried about people using my editorial images at their own risks for something else. Otherwise I could not upload many images at all because I already have no control about how the customer actually uses my images, do I?

Quote from: MichaelJayFoto on November 15, 2014, 10:54

I'm not really sure what everybody's problem is... taking pictures of things almost never is a legal problem. It's not illegal to take a photo of an iPhone or a McDonald's restaurant. It's the publication of images that is a problem. And that part is always the buyers' worry and not yours.

Don't you remember that Yuri got sued by a big eye glasses manufacturer for letting his models wear their glasses in (closeup) photos?  It wasn't the buyers who bought his images that got sued ... 
Can't say how the story ended, as Yuri stopped talking about it after his first post.

Did he upload those images for editorial or for commercial with the typical remark "nothing in it violating the rights of others" that is required by all microstock agencies? I am rather careful about what I upload with a commercial license to microstock as well because in this case I take part of the responsibility by clicking that checkbox.

With the latter you are also saying anyone may use these images for his commercial purposes. And that includes competing companies of the manufacturing companies. I can see how this can cause problems.

And that is something happening all the time. But typically we don't hear directly about it because a company is sending out "cease and desist" orders to the agencies, Getty usually first. That's when a few months down the road we get an email from iStock saying "we have pulled images containing XXX because we found it contains a legal risk".

Quote from: MichaelJayFoto on November 15, 2014, 10:54

As a contributor, with commercial images, you also state that "this image does not violate the rights of others". When you upload an image to an editorial section, you do NOT state the same. From my point of view, as a contributor you are on the safe side when someone uses an image you uploaded to an editorial section because with that you already make a clear statement that the image contains unreleased content and it's the buyers risk to use it.

I wouldn't have any problem allowing any image user to license any of my images for whatever they want to if they want to take the risk.

You are not a lawyer Michael, I would be very careful to generally believe you are not liable or safe from harm if you upload content as editorial.

cobalt +1
yes, there seems to be an assumption misconception that editorial is free to publish anything.
freedom of the press is only because the press has deep pockets, or papparazzi
are working in tandem with celebrities . both of which again have deep pockets.