I'm not an expert in this direct area, but it strikes me that you have a few
considerations.
Firstly an artistic work will remain an artistic work even if used for
marketing. The Mona Lisa and Sunflowers are two works of art that have been
used extensively in marketing, but they are still works of art. However, do
they fit the term artistic in the context of DP law, is an interesting one.
See below.
Secondly, I would say that an Instagram photo is highly likely to be
artistic - Let's face it, it's not the medium/system used it's about the
composition.
Thirdly, my main concern on this would be the member of the public. Unless
you can claim some journalistic exemption, then you will have to make sure
that they have consent to their image being used. I worked with a guy whose
image was used in a major advertising campaign without his consent back in
about 2002. The company was (is) a household name. He won his case.
Artistic or not, once it's in the marketing realm, I would say it loses
journalistic and artistic rights under DP.
I am sure others may feel differently.
Simon Howarth.
From: This list is for those interested in Data Protection issues
<[log in to unmask]> On Behalf Of Michelle Brown
Sent: 04 September 2018 10:12
To: [log in to unmask]
Subject: [data-protection] Artistic works used in marketing
Morning all,
I'm tying myself in knots with an issue about use of photos in a marketing
campaign and hoping someone on here can help. Here's the scenario:
1. An Instagram user posts a photograph to their open account, which
features a member of the public in a public space.
2. The Instagram user posts a significant number of hashtags on their
photograph, including one which enters the photo in a competition to be
featured on posters for an organisation in a city. The other hashtags are
describing things in the photo, and include commonly used hashtags about the
city in question. For example - #lovemanchester
3. The Instagram user is contacted by the organisation running the
competition to ask her if she gives her permission for the photograph and
she says yes, go ahead.
4. The photo is one of a selection printed onto A1 size posters placed
around a city for a number of weeks, and is republished in the
organisation's promoted Instagram posts.
The question I have is this: If this Instagram photo counts as an "artistic
work", is it still an artistic work once used for marketing? And therefore,
do the DPA 2018 exemptions apply?
(I am prepared to accept that the Instagram photo counts as an "artistic
work", but would be happy to hear alternative views as to why it's not.)
Thanks in advance.
Best wishes,
Michelle
Michelle Brown
Information Manager
Transport for Greater Manchester
2 Piccadilly Place, Manchester M1 3BG
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