Use of a photograph (or video) for business or promotional purposes (for example, to market your business) requires that you have certain rights to do so, or you may be sued by the owner of those rights for violating them. 

The person who took a photograph (or his/her employer) has a copyright in that photograph, which means that they have the right to restrict others’ use of the photo as their property.  They may decide to allow free use of their photo for commercial purposes, or to charge for such use, or to not permit this type of use at all. So, just because you find an image on the web or see someone else using it does not mean it is in the public domain and free for anyone to use in an ad – the company or person using the photo may own it, may have paid a license fee to use it, or they may be using it for a purpose that is different than yours. 

Even if a photo found on the web is made available by the photographer for public use via one of the many public copyright licenses (e.g. the Creative Commons license), the right to share, use, and build upon the work may be limited and your intended use might be restricted. There are multiple types of Creative Commons licenses, which grant different types of use rights.  If a photo or other work doesn’t have a copyright notice in the location you find it, that does not mean that it is free to distribute or otherwise be used for any reason - always check for the original source of the image or work and note the license terms under which the work is made available.

Also note that there are two separate types of rights to consider when using a photographic image in a promotional way.  First, as discussed above: Who is the property owner of the picture or the actual physical manifestation of the image and what rights have they granted for your use of it?  And, second: Who is the owner of the rights to the subject matter depicted in the image or photo (which may include trademark, copyright and personal rights of publicity and/or privacy)?  Unless the photo is a selfie, the owner of the property rights to the photograph itself and the person who controls the rights to use the subject matter depicted in the photograph are likely two (or more) different parties.  For example, if I take a picture of you, I own the property rights to that photograph, but you maintain the personal right to the use of your likeness and I would need your permission to use my photo of you to market my business. Similarly, if you take a photo of a professional sports team player in his jersey on game day, you may own the photo you took, but you do not have the right to use the team’s trademarked logo or the player’s likeness to promote your product, without consent from the team, the league and the player.  So, in order to include an image in any marketing that promotes your business or its products/services, you should have the right to use BOTH the photo and the subject matter for your promotional purposes. 

Similar concerns about image rights can arise in filming promotional video footage that may include customers or passersby.  Where practical, the best practice is to have everyone who is recognizable in a promotional video sign a release to permit you to use their images or voices for that purpose.  A parent or legal guardian must sign for any minor who appears.  If you are filming in an area where people may inadvertently become part of the video, when signing releases would be impractical, a best practice is to post a notice that you are filming a promotional video in the area that may include them if they walk into the frame.  Even so, you may want to edit out or blur any people who end up having significant screen time, or who may not appear in their best light, if you did not or cannot get a signed release from them.  And, take care not to film patients near hospitals, doctors’ offices or clinics because of health privacy concerns.

This “Best Practices” content is provided for convenience and information only and is not intended as legal advice.  We do not claim that this information represents an accurate summary of the laws in this area or that it will be updated for any changes.  Please consult an attorney for questions about your compliance with applicable laws.