Consenting adults – ensuring images don’t cost millions

A man gently tossing a camera in the air.
Alex Kronenberg is the demand generation and community manager at FotoWare.

A photographer’s $12 million lawsuit against video game developer and publisher Capcom has highlighted the importance of digital consent management. US photographer Judy Juracek sued the Japanese games developer Capcom for damages, alleging that Capcom used approximately 80 of her images without her consent, breaching copyright law.

This news may send shivers down the spines of marketers, designers and HR teams, as they wonder if all digital assets within their firms, be they images or videos, are being used correctly and with consent. 

FotoWare’s 2021 Digital Asset Management (DAM) survey revealed that 72% of respondents’ companies had seen an increase in the number of digital assets over the previous 12 months. With this increase, the pressure is on multiple teams across a business, including marketers, to manage consent for more digital assets.

The two main types of assets are people- and commercial-imagery. While rights management is often in place, and with proper use can prevent lawsuits, consent management for individuals has come to the fore with the proliferation of data privacy regulations, such as GDPR and CCPA. 

The majority of the images Capcom used were from Juracek’s 1996 CD-ROM Surfaces, where intricate wood carvings, stained glass designs and shattered glass patterns have been lifted into Capcom’s Resident Evil series. Juracek’s work was “for designers by a designer” but gave nothing more than implicit consent that the images could be used.

As Capcom had no agreement or licence with Juracek, it is now being sued. Securing consent when using Juracek’s images would have ensured that Capcom would not be facing this lawsuit. However, it’s not just commercial use of images that present a challenge, lack of image consent for individuals breaches data privacy regulations. For GDPR breaches organisations can face fines up to 20 million euros or 4% of the companies global turn-over depending on which is higher. 

Accordingly, compliance is a huge concern. A third of respondents who manage digital assets listed copyright issues and GDPR as top challenges in FotoWare’s 2021 DAM survey. GDPR-breaching offences, such as when an employee who had previously given consent leaves a company, as they have the right to withdrawal and erasure of personal identifiable information, are easily avoidable with strategy and systems in place that capture, monitor and alert stakeholders re changes in consent. 

Marketing teams from all industries often rely on images of employees or others for advertising and branding reasons, and need to manage the consent of all persons in any photos used. However, a consent management strategy affects not just marketing and communication teams but even, for example, the slides used in a sales meeting. Consent management strategies such as verbal consent and consent handling done by individuals can lead to inconsistencies and gaps. 

As with Capcom, it’s highly likely that a given organisation cannot always easily find, delete or change the consent status associated with the media they use, implying that it is likely breaching either copyright or personal data privacy regulations. Therefore, it is important to keep consistent and up-to-date records of consent. This issue can be solved by using an automated DAM software with integrated consent management.

Having this system in place can help avoid common pitfalls and streamline consent-giving and management, and is a huge timesaver for many companies, like the San Francisco Ballet. It had to gather image approvals from both the artistic department and the dancers manually. By manually printing photos and taking them to stakeholders for approval, the process was not only time-consuming but also made it difficult for dancers and the artistic department to properly view the details of the photos. It also meant there was no clear documentation trail to show what had been approved and when, or by who.

With FotoWare, the San Francisco Ballet was able to automate and speed up its approval processes through DAM. After a performance, relevant dancers are informed via app or email that the company would like to use specific images, and the dancer simply provides permissions which are then added to the dancers’ files.

Organising digital assets and the licensing around them through an automated system can make necessary consent tracking simple. Digital Consent Management (DCM) centrally manages consent and enables marketers to easily locate a file and the consent given for the said file. It also allows data subjects to revoke consent for all instances of an image, which is key for compliance. 

When it comes to compliance, images are often an overlooked challenge of personal data handling. Marketers without a proper consent management strategy can experience costly and time-consuming difficulties due to how they store and manage their images. With more images coming on stream, an automatic consent process means that they can feel more confident that they are in compliance with rights and privacy regulations and minimise the risk of facing huge fines or lawsuits.

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