What is the legal definition of "commercial use"? If I market photos through galleries or art festivals, is that commercial use.. or must photos be published or distributed to the mass market to be considered as such?
Posted by David Bostedo on March 15, 2008 at 11:39 PM
I believe anything sold to make money falls under "commercial use". The only sales that wouldn't be commercial are things like fund raisers, not-for-profit sales, and maybe some government sales. Any other type of merchandise sale is commercial.
David,
It's my understanding from what the lawyers say on other forums that "commercial use" is work that is used in advertising. A work sold as "art" is not a commercial use and the end use is purchased as prints for personal use - galleries, art fairs,etc.
Lou Neal
Posted by Toni Lankerd on March 16, 2008 at 9:33 AM
Ditto what Louis said. Prints are not considered "commercial" use. Any images used for advertising is considered commercial use and also requires model and/or property releases. Published images can also be classified as editorial, if used in newspaper and magazine articles.
Posted by David Bostedo on March 16, 2008 at 5:51 PM
Louis and Toni - Here's something I posted in another discussion regarding this very topic, but no one responded :
You know, I've heard this before, and I always figured that it was because people got confused over the definition of the word "commercial". In the US, "commercial" can mean (among other things) both "advertisement" and "to be used for sales". The second definition would mean that anything being sold is a "commercial" good, so release would always be needed in order to sell an image of someone else's property/goods/etc. (This is what I would expect is correct.)
I always wondered if people were using the first definition when they said that releases were only needed for advertising, but I really have no idea.
I'm not trying to be argumentative, but are you positive I'm wrong? Because from my experience, in other fields, "commercial" just refers to "commerce", meaning you are trying to make money. It has nothing to do with advertising. Granted, photos are used for advertising, where the product in a lot of other fields isn't, so maybe that's why I'm confused. Maybe there's a lawyer around here somewhere?
Posted by Toni Lankerd on March 16, 2008 at 11:06 PM
The stock agency I am with sells prints along with editorial and commercial use. We have never been told we need a release of any sort for print sales. Of course copyright or trademark items are a different story.
Posted by David Bostedo on March 17, 2008 at 10:31 AM
Toni - Do you have pictures of people with the stock agency? I'm not sure what the original poster was referring to, but I assume you need a model release for any sales of recognizable people - whether it's an art print or not. Searching the sites you mentioned didn't make it crystal clear, but I did find a couple of pages where the term "commercial" as applied to photos just means the sale of images, regardless of the purpose (especially the last link).
If the sale is for editorial use, news use, etc. releases may not be needed. I'm also not sure based on poking around that limited runs of private sales (in other words, not large offerings to the public) can remain unaffected by "commercial sales" laws as well...
Of course, in actual advertising, there are probably instances where "commercial" does in fact just mean "for advertising", but I'd think you have to be careful about that term...
Posted by Toni Lankerd on March 17, 2008 at 12:06 PM
David, yes I do have images of people at the stock agency. Most of them have model releases so can be used for any purpose, but some, as in local sports or public activities type images, do not have releases and have been sold as both editorial and art prints.
I believe Blane is asking if images sold as art prints are considered commercial use. In the stock photography business, that is not considered "commercial" use...only as I stated before...when used in advertising, etc. But...if you sell a print of someone's house, property or a person without permission, or you might have a problem. Public venues and public buildings are free game as far as I know...I would not even attempt to sell images of celebs.
As for the CA parks, I've heard different explanations for that. Some believe that only relates to big shoots that require extensive equipment, while it doesn't relate to the "average Joe" photographer.
The same rule apparently applies to national parks. To be on the safe side, any images I have with a stock agency that were taken in national parks I have marked as for editorial or print use only.
Posted by David Bostedo on March 17, 2008 at 12:51 PM
Toni - I'm sure you are correct in your usage and necessity for releases. I just don't think, even based on your examples, that "commercial" always, or even typically, refers to advertising. If I am hired to take pictures of a parade by a gallery or art store for them to sell, most people would call that a "commercial shoot". If I am taking pictures of a National Park with the intent of selling them in my gallery, I am on a "commercial shoot".
So to the original posters' question, I would still say that yes, selling photos through galleries or fesitvals IS commercial use. If you have a photo of a guy on the street you want to sell, you may need a model release.
Posted by Toni Lankerd on March 17, 2008 at 6:17 PM
David,
Commercial photography is done for advertising, assignment, brochures, model shoots, portraits, etc.
Photography for prints (to be sold) or displays in art galleries, is defined as fine art, not commercial.
If you are hired to take pictures of a parade by a gallery, or art store, and if the resulting images are then sold as prints, it's still fine art.
Posted by David Bostedo on March 17, 2008 at 10:10 PM
Toni - I didn't think this discussion would last this long . I think what I'm saying is that "fine art" is commercial. I think if a ranger walked up to me in a park, and I was taking shots for a fine art gallery, and the ranger asked me if I was shooting commercially, I'd answer "yes". I think that's the more general definition of commercial. Is fine art really segregated from other types of sales by terminology like that? Would I really be able to say "no"? If so, are all other types of sales commercial?
I don't want to overstep my bounds here (if I haven't yet - I probably have ), since I really don't know about photography sales specifically. But I don't want anyone thinking that a location that specifies that "commercial shooting is not allowed" would let you take any pictures for sale regardless of use. I don't think they would. Has anyone (Toni?) come across anything like that? Like I said, maybe it's just different for photography, or particularly art photography.
A lot of things specify being sold for "personal use" versus "commercial use". In those cases, commercial use would be any re-selling, or otherwise making money off of the item.
Sorry to drag this out so much, and to seem like I don't trust what you're saying Toni. But I realize there are times when "commercial" photography really does just mean advertising photography. I just think there must be times when it is used in a larger sense.
Posted by Toni Lankerd on March 17, 2008 at 10:24 PM
But I don't want anyone thinking that a location that specifies that "commercial shooting is not allowed" would let you take any pictures for sale regardless of use. I don't think they would. Has anyone (Toni?) come across anything like that?
Yes, I have, David. The last time I was in Kentucky visiting the Lincoln Birthplace Memorial, one of the rangers and I were discussing the images I had taken there. I was told that I could use the images for stock editorial use, but not for commercial (as in advertising). Those type of images are not normally in demand for commercial use anyway, so it didn't matter to me.
Where's Hank? He could explain all this much better than I can!
I did a quick internet lookup on "commercial photography" and the results are quite confusing. Some sites refer to it as photography done for commercial purposes. According to Wikipedia, for example, the commercial photography world can be broken down into the following: advertising, fashion/glamour, crime scene, still-life, food, photojournalism, portrait and wedding,... It even includes pronography!
I also came across the following definintion on another site:
"Commercial photography means digital or film recording of a still image that uses models, props, sets, or articles of commerce for the purpose of commercial advertising."
Discussion
12 repliesIt's my understanding from what the lawyers say on other forums that "commercial use" is work that is used in advertising. A work sold as "art" is not a commercial use and the end use is purchased as prints for personal use - galleries, art fairs,etc.
Lou Neal
I'm not trying to be argumentative, but are you positive I'm wrong? Because from my experience, in other fields, "commercial" just refers to "commerce", meaning you are trying to make money. It has nothing to do with advertising. Granted, photos are used for advertising, where the product in a lot of other fields isn't, so maybe that's why I'm confused. Maybe there's a lawyer around here somewhere?
The stock agency I am with sells prints along with editorial and commercial use. We have never been told we need a release of any sort for print sales. Of course copyright or trademark items are a different story.
The last part here about the print sales lawsuit :
http://www.asmp.org/commerce/legal/releases/
The sale of pics of Britney Spears here:
http://www.photoattorney.com/2005_10_01_photoattorney_archive.html
California State Parks defition of Commercial Photography :
http://www.parks.ca.gov/?page_id=1027
If the sale is for editorial use, news use, etc. releases may not be needed. I'm also not sure based on poking around that limited runs of private sales (in other words, not large offerings to the public) can remain unaffected by "commercial sales" laws as well...
Of course, in actual advertising, there are probably instances where "commercial" does in fact just mean "for advertising", but I'd think you have to be careful about that term...
I believe Blane is asking if images sold as art prints are considered commercial use. In the stock photography business, that is not considered "commercial" use...only as I stated before...when used in advertising, etc. But...if you sell a print of someone's house, property or a person without permission, or you might have a problem. Public venues and public buildings are free game as far as I know...I would not even attempt to sell images of celebs.
As for the CA parks, I've heard different explanations for that. Some believe that only relates to big shoots that require extensive equipment, while it doesn't relate to the "average Joe" photographer.
The same rule apparently applies to national parks. To be on the safe side, any images I have with a stock agency that were taken in national parks I have marked as for editorial or print use only.
So to the original posters' question, I would still say that yes, selling photos through galleries or fesitvals IS commercial use. If you have a photo of a guy on the street you want to sell, you may need a model release.
Commercial photography is done for advertising, assignment, brochures, model shoots, portraits, etc.
Photography for prints (to be sold) or displays in art galleries, is defined as fine art, not commercial.
If you are hired to take pictures of a parade by a gallery, or art store, and if the resulting images are then sold as prints, it's still fine art.
I don't want to overstep my bounds here (if I haven't yet - I probably have
A lot of things specify being sold for "personal use" versus "commercial use". In those cases, commercial use would be any re-selling, or otherwise making money off of the item.
Sorry to drag this out so much, and to seem like I don't trust what you're saying Toni. But I realize there are times when "commercial" photography really does just mean advertising photography. I just think there must be times when it is used in a larger sense.
Yes, I have, David. The last time I was in Kentucky visiting the Lincoln Birthplace Memorial, one of the rangers and I were discussing the images I had taken there. I was told that I could use the images for stock editorial use, but not for commercial (as in advertising). Those type of images are not normally in demand for commercial use anyway, so it didn't matter to me.
Where's Hank?
I also came across the following definintion on another site:
"Commercial photography means digital or film recording of a still image that uses models, props, sets, or articles of commerce for the purpose of commercial advertising."
So I guess it could mean pretty much anything.