Can you use someone else's photo, video or quote in your marketing?

You scroll past a beautiful photo on Instagram that fits your new campaign perfectly. One tap and you have reposted it. Convenient, free, done. Until, a few weeks later, an invoice or a cease-and-desist letter lands on your doormat from the photographer, or from an agency that combs the internet for unauthorised use. That happens more often than you would think, and it can become expensive.

The question underneath all this: can you simply use someone else’s content for your marketing? The short answer is usually no. But there are exceptions, and that is precisely where it gets interesting.

The starting point: permission first

An original photo, video, illustration or text is protected by copyright. The author decides who uses the work, how and for what. If you want to use it in your marketing, you need permission in principle. You arrange that by asking the author, by buying a licence through a stock library, or by using material under a Creative Commons licence that permits commercial use.

If you do not, you run the risk of a claim. And contrary to what many people think, “I credited the source” is no free pass. Attribution alone does not make the use lawful.

The exception: the right of quotation

There is one route along which you may sometimes use someone else’s work without asking, and that is the right of quotation. But it comes with a number of conditions, and they are stricter than they sound.

To rely on it, the work must have been lawfully made public. Your quotation must be functional, so it has to genuinely add something, for instance in a review or an announcement. You may not take more than is necessary, and the image you take must be only a small part of your publication. And you must clearly state the author’s name, because their moral rights continue to apply.

The heart of it lies in that word “functional”. If you use a photo purely as decoration, to make your post look a bit nicer, you do not fall within the right of quotation. If you use it in order to say something substantive about it, that is a different story. A serious statement is, incidentally, perfectly entitled to be humorous in tone. Serious does not mean you cannot laugh.

For most marketing material the answer is a plain one: an image that mainly serves to brighten up your campaign rarely falls within the right of quotation. So you need permission.

Watch out with quotes and text

A quote can be protected too, if it is sufficiently creative. Simply taking a striking, original line by someone else for your brand can therefore amount to infringement. At the same time, not every text is protected by copyright. Where a text is very general and descriptive, the chances are you may reuse it freely. The difference lies in originality, and that is usually what the argument is about.

Working with an influencer?

More and more brands have their content made by influencers, and that brings its own points to watch. As a business you are jointly responsible for the advertising the influencer makes for you. So check whether they comply with the Dutch Advertising Code for Social Media and Influencer Marketing, that any comparative advertising is not misleading, whether image rights are in order where people appear on screen, and whether the GDPR is being respected. Larger influencers also have to register with the Dutch Media Authority (Commissariaat voor de Media).

Record the collaboration in an agreement. In it you agree that the influencer will comply with the advertising rules, who gets the copyright in the content produced, what fee is payable in return, and whether you may reuse the material later. That saves you a great deal of trouble afterwards.

And what about embedding?

Good news for those who like to share: embedding is often allowed. If you embed a YouTube video or a social post through the official embed function, the content stays where it already was. You download nothing and you make no copy, so there is no reproduction. One condition: the content must have been made public lawfully and must not sit behind a paywall or another barrier. Embedding something that is itself online unlawfully is a different matter.

In short

If you want to use someone else’s photo, video or quote in your marketing, assume that you need permission, unless you genuinely stay within the limits of the right of quotation or embed properly. Unsure whether your use passes muster, or have you received a claim yourself? Run it past someone before you post or pay. As a lawyer I am happy to help businesses and creative professionals with judgement calls of this kind. Call 020 675 88 21 or send a message, and we will look at the best approach together.