Property, intangible

a blog about ownership of intellectual property rights and its licensing

Sometimes Everyone DOESN’T Know What It Means

I have often wondered about the distinction commonly used in photography contracts for “editorial” use. I never quite knew what it meant, but then I’m not a specialist in that industry. Industries have their own terms of art and I figured that everyone who works in photography knows what kind of use crosses the “editorial” line.

But apparently not. In Boatman v. US Racquetball Association, Boatman photographed racquetball events and allowed non-party Gamin Enterprises, who ran the events for USA Racquetball, to use the photographs for “editorial” purposes and to let USA Racquetball use them. There were three agreements and only one had anything that could be considered a definition of “editorial,” as seen below:

USAR License clip

If you can’t read it, it says “USA Racquetball is restricted to editorial usage only. NO commercial advertisement or for ads of any type….”

There were six different types of uses by USA Raquetball that Boatman claimed were outside the scope of the license, like this:

Boatman v. USAR alleged infringement

Boatman filed a motion for summary judgment on infringement.

The problem was, the count found there were a number of different meanings for “editorial.” First, as to the agreements themselves:

None of the agreements of [sic] licenses offers an express definition of the term “editorial use.” At best, the USAR License appears to juxtapose the concept of permissible “editorial use“ with the prohibition on the use of the photos in “commercial advertisement or for ads of any type.”

The testimony didn’t clear anything up either. Before the lawsuit started, a principal of defendant USA Racquetball had asked Mr. Ganim of Ganim Enterprises “what are editorial rights” and continued “that to me does not imply the right to use the photographs in any way other than the Open.” His tune changed though; he later testified that he understood the term “editorial use” to mean “written information that is not for profit, including a non-profit publication” (which described one of the accused uses) and said that “editorial, to me, means usage of—beyond usage for your own use; giving it to somebody for commercial purposes that will make them money.”

Garmin offered yet a different definition. Gamin said that “the photographs were licensed to me for the purpose of anything I wanted to do with them with regards to the U.S. Open, so editorial purposes, marketing and promotion of the U.S. Open, dissemination and use of the U.S. Open photos by my U.S. Open sponsors …. that I could use the photographs for, you know, whatever I needed to as long as it related to the U.S. Open.” He also said he “didn’t want the photographs, you know, to be profited from, that we were only interested in promoting racquetball with the photographs.”

Dictionary definitions didn’t help; “editorial” is defined as “of or relating to an editor or editing,” and the act of “editing” is defined as “to prepare [material] for publication.”

Thus there could be no summary judgment here:

There is some evidence to suggest that the parties understood “editorial use” to be the antithesis of “commercial” or “advertising” use – i.e. that USAR was permitted to make use of the photographs in conjunction with articles about the U.S. Open in particular, or even about racquetball in general, but was not entitled to use the photographs to promote the sale of any products.

But even that interpretation does not clearly resolve the issue: the concept of “commercial” use is itself ambiguous. Mr. Ganim’s recitation of discussions with Mr. Boatman suggest that the parties may have understood that “commercial” use equated with “for profit” use – that is, the photographs could be used to advertise products and services provided by USAR or other non-profit entities seeking to advance the statute of racquetball, but that the photographs could not be used by for-profit entities seeking to advertise their products or services. If, by extension, “editorial” use is the opposite of “for-profit” use, then all of USAR’s uses of the photos might be considered “editorial” in nature because USAR is a non-profit company and there is nothing in the record to suggest that its own use of the products was ever for a profit-generating purpose.

So I guess I wasn’t crazy when I wondered what an “editorial” use of a photograph is.

Boatman v. US Racquetball Assn., Civ. No. 12-cv-01590-MSK-CBS (D. Colo. March 31, 2014).

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