Render unto Caesar what is Caesar’s, or risk ending up in the arena…
MARK & LAW team wishes you all the best for 2025!
January 9, 2025
Whether on your website, your products or your advertising materials, the use of a photo, an image, a sound or a musical extract is based on their originality and aesthetic appeal. These creations, true works of the mind, draw attention to your company or products. But behind every work lies an author and his or her rights.
Here are a few essential rules to keep in mind:
| 1. You must ask permission from the author:
– wheter he or she is one of several authors, – one of your employees, – or even your advertissing agency.
💣 Even in “royalty-free” image databases, you may be required to purchase a license to use the image. |
2. You must discuss: – the intended use of the work (advertising, illustration, information, documentation, etc.). – the rights assigned: representation, reproduction (by what means: printing, graphic arts, cinema…), distribution (on what media: Internet, multimedia product, television…), modification/adaptation, translation (for a text). – in which country(ies) the work will be used. – for how long (or consider a definitive assignment). 💣 Even if you have acquired the rights to use a work, you are bound to respect the moral rights of its author. This means citing him every time his work is used, in the way he sees fit. For example, you can mention his name under the purchased image, accompanied by the words “photographic credit”. |
3. Formalize in writing what was agreed during your negotiations: Prior clarification helps avoid future conflicts. Written word remains, and will be invaluable in the event of a dispute. Make sure you sign a copyright assignment contract with the author, or include a specific clause in the general contract between you and your advertising agency if the latter is the author of the work. NB: The purchase price of the work includes both its production and the transfer of copyright. No additional remuneration may be demanded at a later date. 💣 An invoice for the transfer of rights is not sufficient (it is often legally incomplete). |
What about image rights? When you use a photo of a person who has given his or her consent to the use of his or her image, you must take care to respect his or her privacy and not to harm his or her integrity or reputation. This also applies to so-called “royalty-free” photos. If the photo is supplied to you by your advertising agency, make sure it has written authorization from the person concerned, or ask the agency to have this authorization signed before any use.
Finally, if you’re sending a work to a client, make sure to provide them with a letter, on your company letterhead, clearly specifying the authorized use of the work. For example: “only intended for your publication X” or “intended for the illustration of our products”. This letter should also remind your client of the obligation to respect the author’s moral rights: the work must be used without creating confusion with another product, without being distorted, modified or partially reproduced, and only for the agreed use or media.
– Sylvie BOYER, Paralegal at Mark & Law
