A little photo usage primer for our side. I'm expanding this from a post I made to the USA next entry.
The reason the USA Next ad came to attention of the subjects of the gay marriage photo, was the egregiousness of the message. This caused the ad to become well publicized on the left, and the subjects were alerted to it. The right may be looking for our side to mess up on this in the future, so let's not do it ourselves in any of the groups we work with
Below the fold some tips on the legal issues as it concerns photo use.
The case against US Next involves two areas of legal address, where the use of a photo is concerned. I've seen the MSM articles combine these two issues in their stories, muddling them by putting them together. They are separate, even though USA Next violated both.
One issue is copyright infringement, in which case they infringed on the Portland paper for using the copyrighted photo without paying for it. The paper doesn't appear to be suing for this. They should, because if the image had it's copyright registered, (probably was not done, it's not commonly done before publication) they can get significant damages, if they didn't register it, they just get the fair price for the way the image was used. (this is probably why USA Next tried to price another image, to gauge what their legal exposure was in terms of copyright infringement)
The reason the paper didn't license the image, or the substitute, for the ad relates to the second issue.
That is the issue of publicity rights, which is where the subjects of the photo have a case. You can't use a photo of a person (or place or thing, often) in an advertisement unless the person or entity depicted has released the their likeness for that use. Basically you have the right to be paid (or at least asked) to endorse products, political causes, etc. This is the law that protects famous people from having their image attached to millions of products without their permission and compensation. It's why you can't use a picture of Tiger woods on cereal without paying him, and also why you can't do the same with an image of the Bronx Zoo in an ad for cat food. The plaintiffs in this case also can say that they were damaged by this particular depiction (in fact they have), and that would increase their potential for a larger monetary award. Even if they weren't damaged by the negative tone of the ad, they still were violated by having their image used without their permission for commercial purposes, but they would probably be awarded less money if they won the case.
The right of publicity, is the reason the photo department of the newspaper would not license the image to USA Next, or to anyone for use in an ad because the photo was not model released by the subjects for that. The photo department of a newspaper would know that they can't license 99% of their photos for ads, and is why they denied the license for a different image for this ad.
Your image can be used in an editorial context, in a news story or in a book or other non-commercial speech, without your permission, provided it was taken in a public place with public access. So the blogs that posted the ad, did so in an editorial context, they haven't infringed on the gay couples right of publicity as USA Next is trying to argue.
That posting on blogs, was also likely a fair use of the copyrighted image owned by the Portland paper. You can fairly use an image to talk about it's use, in a story, particularly because the entire ad was shown, with the other images, text and graphics. But fair use is never a slam dunk.
Let's remind our own groups not get into the same trouble, on either of these issues. On the copyright front, use on the internet is publishing, so even in an editorial context, you could be violating copyright if you post an image that you don't have permission or a license to post. In most cases this would never be noticed or followed up with legal action. That doesn't mean it's perfectly safe to do. For a non professional poster, it would possibly fall under fair use in copyright law, but fair use is a moving target legally. Different courts rule differently on it almost daily, you can't ever be sure you will be protected in your specific situation. When in doubt, link to images posted elsewhere, or pay to license images.
On the right of publicity issue, this generally applies only when an image is used in advertising. Remember that to use an image in any sort of ad, the people or entities depicted generally have the right to control their image in connection with endorsing a product, position or party, and they have the right to profit from the use of their image. When creating an ad for a grassroots organization, you might do best to create the images for the ads from scratch, using subjects who've signed off on how their images will be used in a model release.
If you still want to use stock images, make sure these rights are included or can be obtained. A cheap option can be royalty-free pictures, which generally have the model rights cleared and are inexpensive. They also tend to be generic and not unique looking so might not work for you.
Generally, the images of people in news photos are hard to clear for ads, and most places that own the copyright of such a photo can not help you clear them. They generally don't have any contact info for the subjects, as this is not needed for news use.
Usually the process of trying to buy an image, will reveal all these issues to you, because people who buy and sell pictures for a living are aware of them. The problem USA Next ran into, is that they stole the image in the first place. Even when they "realized" they had taken the picture without clearance, they only went about trying to purchase a license on the copyright of a similar image from the newspaper. They were rejected because of the model release issues, and seem to claim it was some partisan trap. It's just basic photo sales expertise by the newspaper that dissallowed the sale.