Photography: The fight for rights

Use an image without clearing it properly and you could get sued for millions.

Last year, a Californian jury awarded one Russell Christoff $15.6 million for Nestle USA's unauthorised use of his face on the labels of its Taster's Choice instant coffee. Christoff had been shopping in the supermarket and recognised himself on the label from a two-hour photo shoot he did back in 1986 for the company.

The case has been appealed. But, whatever the outcome, it's a loud wake-up call to clients and marketing agencies to make sure they keep on top of the rights of any photographic images that they use.

Agencies are clearly wise to the potential pitfalls. In the US, where the stakes are generally higher and rights more complex, they will have more legal support. In London agencies, art buyers and account teams are normally jointly responsible for clearances.

At Abbott Mead Vickers BBDO, the art buyer Mary Martin is keenly aware. "If you don't have the rights, you risk being sued," she says swiftly. "And we have a moral obligation to our suppliers." Most of her dealings are to do with commissioning new photography. "When we are presented with the layout and get into discussions about the look, one of the major questions is about usage," she says.

As well as dealing with the rights of the photographer, advertisers need to clear permission with anyone in a picture who might potentially feel aggrieved. Reading an image with a view to clearances requires an experienced eye. To avoid running into trouble, you need to be tuned into the complexities of the issue. The Eiffel Tower, for example, requires permission if photographed by night, but not by day.

The stills producer Bel January at Euro RSCG says: "One ad we did for Barclaycard was shot in a DIY shop. We had to go through various different press departments in each com-pany to clear branded background elements." Martin, who attends IPA seminars on rights issues to keep herself up to date, concurs: "Anything with a logo, from the smallest thing like paper cups to the hugest things like architecture, even car licence plates, you need permission."

The best solution, January suggests, is to avoid including branded elements in a commissioned shot, "even to the extent that if you are doing a shot on location where there's a car and it's branded, you need to take it out. You want to make it as generic as possible." She remembers an Evian ad, shot by David LaChapelle, where the account handler had to get permission from Citroen. The car in the ad was branded and its shape was unmistakeably that of the classic French marque.

Of course, you might assume that if you're using stock shots, rights are cleared. But that's not always the case. In 2000, Lowe and Rex Features had to pay damages to the Cuban photographer Alberto Diaz Gutierrez, who snapped a famous picture of the revolutionary hero Che Guevara. He complained that an ad for a spicy vodka trivialised the historic importance of his photograph.

Since it was taken in 1960, the iconic image has become one of the world's most widely reproduced. But Gutierrez had never made any money from it. His objection to its association with Smirnoff vodka led to a British court awarding him copyright protection as part of a financial settlement.

The ambiguity and international differences in legal protection for copyright make it a minefield for advertisers. One option is for agencies to bring in a rights clearance specialist, such as Reid & Casement. Then there are the big picture libraries, which will clear images both from their own stock and from other sources. For example, Corbis recently cleared rights for AMV's Guinness ad featuring Albert Einstein. It also cleared a poster for the classic film La Dolce Vita for Peroni. Like other image banks, Corbis also offers all sorts of clearance services. Curtis Bowden, the head of rights at Corbis, says many advertisers are keen to clear all rights if a campaign is likely to run across territories. "If there is some ambiguity and your tolerance of risk is zero, you simply ask for and get permission from the rights holder."

Different countries have very different laws. In the UK, people have no publicity rights after death. In the US, the law varies from state to state - Massachusetts grants zero publicity rights after death, while Indiana grants full publicity rights for 100 years. "The bottom line," Bowden says, "is that you need a publicity check for anyone who hasn't been dead for 100 years."

Corbis has project managed rights for some ad campaigns, checking whether clearances can be made on time and within budget.

The US agency Goodby Silverstein & Partners recently pitched an idea to Comcast which involved using a clip from a 70s gameshow. Comcast bought the idea, then Goodby discovered that Sony Pictures, which owns the show, operated a policy of not allowing alterations.

Corbis managed to win Sony Pictures round. It went on to clear the gameshow host and the featured actress, and then tracked down the contestant Mike Gilooly, from Newark, Ohio. Corbis also provided a back-up plan, as well as working on other executions. A first choice of Jurassic Park for another spot was ditched in favour of Hulk, after Steven Spielberg was found to be too busy to agree permissions.

Getty Images offers a similar rights detective agency service to Corbis. It recently tracked down a roller-disco star from the 70s called Butch Ford and a burlesque stripper from the 40s for some AmEx commercials.

Eric Rachlis, the director of licensing services at Getty Images, emphasises that a lot of agencies use Getty Images for the relationships that it has with rights holders.

"We can get quick answers from the TV and film studios," she says. "You could wait ten days to two weeks, whereas through us you can get an answer the following day."

Getty also offers an insurance policy, called an image guarantee, which offers indemnity on rights issues to users of its images.

So, in an increasingly litigious society, advertisers can feel that little bit more secure.