Below you will find questions most of us would ask ourselves before we licensed a stock photo. This is a mixture of some basic advice, some common sense and some more advanced issues you might want to consider. Got a copyright or licensing question? Email us at firstname.lastname@example.org or ask us a question on twitter @stockphotousage and we will add the question and answer to this section.
Each section is broken down into these main categories:
Image Licenses Explained
Copyright Issues to Understand
Legal Protection and Extensions
Using Free images and Creative Commons
Infrequent and personal use cases
Questions to ask your supplier
Image Licenses Explained
What are the different types of stock image licenses?
The two main and most common types of stock photo licenses are called royalty-free, sometimes written as just “RF”, and rights-managed, RM.
When licensing royalty-free images, the buyer receives almost unlimited usage from the copyright holder. You, the buyer, can use the RF image in virtually any medium or application, for as long as you like (you will see the legal jargon call the length “in perpetuity”), in as many projects as you need, as long as you stay within the licensing terms of the agreement. Once you purchase the image you are free to use it immediately. What sometimes confuses people within the term royalty free is the word “free” and thinking that the image is free to use. What royalty free really means is that the person using the image is free from having to pay any future royalties in a future project once the initial payment has been made to the copyright holder for using that image i.e. no additional royalty payments are owed.
With rights-managed images (RM), the buyer typically has restrictions on how and where they can use the image. For example, some restrictions could be placed on how long you can use the image (duration of use), where you can use the image (restrictions on geographic locations/regions), what industry you use the image for (some buyers don’t want to risk a competitor using the same image).
Does royalty-free mean I can use the image for free and not pay?
No. Once the initial license fee is paid, the image can be used in nearly any medium or application, as many times as you like and for as long as you need it without requiring you, the buyer, to pay additional royalties to the copyright holder. The initial payment will serve as protection for you or the client you licensed the image on behalf. In some cases, if a buyer would like to purchase additional rights, a stock agency could provide an ‘extended license’ option which increases the scope of rights granted to the buyer. Royalty free image costs are determined by copyright holder or stock agency and in most cases is based on file size with the largest file size being the most expensive.
Copyright Issues to Understand
What is copyright?
Copyright is the exclusive set of rights granted to the author or creator of an original work, including the right to copy, distribute and adapt the work. In addition, any of these rights can be licensed, transferred and/or assigned to another party. Copyright only lasts for a certain time period after which the work is said to enter the public domain. Any creator of “original works of authorship” is protected under copyright law by virtue of the Berne Convention for the Protection of Literary and Artistic Works, which protects works in all 160 countries that are party to the Convention, as well as various other laws such as the US copyright act.
Copyright has been internationally standardized, lasting between fifty and one hundred years from the author’s death, or a shorter period for anonymous or corporate authorship. Generally, copyright is enforced as a civil matter, though some jurisdictions do apply criminal sanctions.
Before 1989 all published works, in the US, had to contain a copyright notice, the (c) symbol, followed by the publication date and copyright owner’s name, to be protected by copyright. This is no longer the case and use of a copyright notice is now optional in the US, though you will still see them used.
Does copyright apply to all images?
Yes, every image out there from the time it is created becomes automatically protected under copyright laws. One should know, that copyright law is different from country to country, and a copyright notice is required in about 20 countries for a work to be protected under copyright laws.
What is copyright infringement?
Copyright infringement, copyright piracy or copyright violation, is the unauthorized use of photos covered by copyright law, in a way that violates one of the copyright owners’ exclusive rights. Imagery infringement may include:
• Using the image beyond the scope of a license or permission granted
• Recreating an image identically with another photographer
• Use of whole or part of an image without permission i.e. “mash-up” or derivative work
• Art rendering, where someone adapts an image without permission
When image infringement occurs, who is responsible?
Here is a list of potential parties or individuals that may be liable if infringement occurs. The list includes:
• The entity that infringed (the photographer or the person who stole the image). This is true even if done unintentionally.
• Employees or others who were a part of the original infringement
• Any entity or person who published the infringing image, whether they had knowledge or not
• Anyone who authorized or encouraged infringement
In some cases, infringement of copyright results in monetary damages being awarded, lawsuit nightmares, and costly legal fees. In very rare circumstances, criminal charges could be pressed.
Can technology find image theft? How would anyone or a piece of technology be able to detect if someone’s copyright was being infringed upon?
Every year, new technology enters the marketplace that enables copyright owners to identify unlicensed imagery and act against those who are illegally using their imagery. Think of an image like a fingerprint. Each image is unique and can be tracked down even if the image has been altered, recreated or cropped so only a portion of the image is used. Some sort of flagging system will alert the copyright holder that one of their image is being used which allows them to check in order to make sure the correct license is held for that usage. TinEye offers a very creative product for performing reverse image search.
Can I use photos and illustrations I find through Google Image search for free?
No. It is up to the user of the image to determine if they need a license to use it. Just because the image is indexed by a search engine like Google doesn’t mean that it is in the public domain, up for grabs and free. Sometimes the difference between an image being online and an image being “in the public domain” can be confusing and possibly lead to unknowing copyright infringement. Images are in the “public domain” if they are not covered by intellectual property rights or if the intellectual property rights have expired, have been forfeited, or have never been claimed. Very simply, it includes images that are not owned or controlled by anyone.
Could I be liable if the images used in my project are not licensed correctly by someone working with me?
You are responsible for ensuring that any images used in your project have been licensed correctly by any third-party designer, employee of yours, freelance contractor or summer intern. If the end-user (the image buyer) can’t prove that a valid licenses exists and was purchased, the liability of any infringement may fall on the company or individual who used the image incorrectly.
What happens if the license for the image I purchase expires or the person who licenses the image doesn’t let me know when the image license expires?
This is one of the issues you need to be aware of when you want to license Rights Managed images and can lead to potential problems down the road. An image buyer will not encounter this problem when licensing royalty free images because there is no time restriction limit. In most cases, it is unwise and at worst, bad practice, to assume that an employee or freelance designer will contact you before a license expires. If the license expires, it is up to you, the buyer, to send the image provider or copyright holder a “renewal notice” to extend the license’s time limitations. Always make sure that your email is on file as the point of contact with the image provider or copyright holder so if they send you a notice about an upcoming expiration, you are informed immediately. In addition, it is wise to organize all your images and licenses in one place so you know the expiration dates and scope of each license purchased. Pixamba’s Stock Photography Management tool helps with this storage of information with the downloaded files.
If I have a small, non-commercial blog, do I have to pay for images or can I use them for free?
In almost all cases, no you don’t have to pay. It is important to make sure that all images on your blog or website have been licensed properly and from the copyright holder or imagery provider representing that copyright holder. If the way you want to use the image is not specifically permitted under copyright law or the licensing rights in a standard licensing contract, then you need to make sure you purchase the correct rights you need for your usage, regardless of your site’s purpose. There are a number of royalty free sites, such as Cutcaster or Pixmac that offer inexpensive, web ready images that are perfect for blogs and websites.
Is there a step by step process to ensure that I have done everything to correctly license an image?
This blog is a good start and resource for understanding the steps you need to take to license a stock photo or illustrations and some of the risks you should be aware of before you download any files. But this is not a substitute for getting legal advice from your in-house team or legal consultant to answer specific questions.
Legal Protection and Extensions
How can I make sure that I am covered against potential legal disputes and claims?
Always consult with legal counsel for the greatest certainty depending on your use and situation. Next make sure that your supplier offers legal protection in its licensing contract for the images they sell. Always ask your supplier if they hold a model or property release of any images used for commercial purposes with people in them, or items that you think might be public property. Some image distributors offer additional legal protection either for free or with an additional charge which is basically like a warranty.
Double checking that your photo suppliers provides legal protection in the form of requiring model and property releases, as well as offering extended protection, tells you that there is a good chance that supplier has an inspection process in place so they have more control over who supplies them with images and if that supplier is the actual copyright holder.
Does indemnification mean ‘legal protection?’
Yes, ‘indemnification’ is commonly understood as a legal term that means essentially the same thing as legal protection. You might read in some stock photo agencies license agreement a provision called a legal guarantee. In most cases, the legal concept of indemnification can mean that one party agrees to bear the liability and will assume the costs related to certain legal claims that may arise. Examine the license agreements to make sure it includes an indemnification provision and make sure you understand if the supplier of the imagery will assume liability for certain kinds of claims and costs.
How does legal protection work in practice?
In the unlikely event that a customer receives a claim, the customer will immediately notify the supplier, who will determine if the claim is covered under their indemnification provision of their license agreement. You need to refer to the specific license agreement so you can see what is covered and who assumes responsibility of a claim.
What are examples of disputes that arose after an image is legally licensed?
Even if you legally license an image from a reputable supplier you can still run into disputes. An example of one potential source for dispute is from a model depicted in an image you license. Every model has the rights of privacy and publicity. The right of privacy protects the model against the disclosure of private facts and false portrayal of them in an offensive manner. The Right of Publicity can be defined simply as the right of an individual to control the commercial use of his or her name, image, likeness or other unequivocal aspects of one’s identity i.e. they needed to sign a model release supplied by the person who took the image. For commercial usage, the model always needs to sign a model release. If your agency or supplier has this on hand, the releases protect both the image supplier and its’ customers against claims of invasion of privacy or publicity.
Does every image with people in them come with a signed model release?
Not always so ask your supplier if you usage requires it. Editorial images may not have a model release for example.
In the same way you need a model release signed by a person in the image, you may also need a property release to cover any trademark locations, words, shapes or symbols in an image that might be trademarked.
What other potential items should I check the image for before I download it?
If there are paintings or sculptures appearing in an image, they could be protected under copyright laws. Check if your specific country has copyright laws that protect images of unique architectural works or buildings or if there are buildings that could be registered trademarks such as the New York Stock Exchange. Always check if a property release is in place.
Free images and Creative Commons
Are there legal sources of free images?
Yes. There are a few sources of free and legal images.
Do free images still have copyright?
Yes. Like it was explained earlier, copyright is automatically granted to the creator of any image. Make sure that the copyright holder has specifically declared the image is free to use.
Can someone get legal protection from suppliers of free, legal images?
It is not common that free images come with any form of legal protection. Almost all free images do not have model releases or property releases. In the event that a claim arises, the customer will be responsible for that claim.
What are the downsides to using free images?
The quality of these images can be lower than paid-for images. Even if you find better quality free images you will likely find that they are over-used. Also there is no inspection process at many free image sites which increases the chance of a dispute arising or the site not holding the model or property release.
What is a Creative Commons license?
Creative Commons is a non-profit organization that has released several copyright-licenses known as Creative Commons licenses. From the Creative Commons website, Creative Commons is dedicated to making it easier for people to share and build upon the work of others, consistent with the rules of copyright.
At Wikipedia, Creative Commons (CC) is devoted to expanding the range of creative works available for others to build upon legally and to share. The organization has released several copyright-licenses known as Creative Commons licenses for free to the public. These licenses allow creators to communicate which rights they reserve, and which rights they waive for the benefit of recipients or other creators. An easy to understand one-page explanation of rights, with associated visual symbols, explains the specifics of each Creative Commons license. This simplicity distinguishes Creative Commons from an all rights reserved copyright. Creative Commons was invented to create a more flexible copyright model, replacing “all rights reserved” with “some rights reserved.” Wikipedia is one of the notable web-based projects using one of its licenses.
Some things to consider when licensing an image using Creative Commons. You want to be aware that there are restrictions that include whether an image can be used for personal or commercial purposes, and if its required to provide attribution or credit to the photographer.
Are you covered against all legal risk when you use a Creative Commons license?
No. Within a Creative Commons license, you will find certain restrictions on how the image can be used and the license does not positively or automatically confirm that necessary model releases or property releases have been obtained so you could still be liable in the case of a dispute. The Creative Commons license does not supply legal protection, so if a claim or dispute is brought to court regarding a model in a photo, a building you thought you could use, a trademark or artistic work in the background of that image, the customer may be liable for that claim.
What is a photo ‘mash-up’ or derivative work?
A mashup or mash-up is any Digital media content containing any or all of text, graphics, audio, video and animation drawn from pre-existing sources, to create a new derivative work. If you are creating a “mash-up” or derivative work you still need to license the underlying images or illustrations that will be used to create the final project.
Infrequent and personal use
If I am using an image I found online for an internal presentation or meeting, do i still need to pay for a license to use the image?
In most circumstances, Yes. Even for an internal presentation, the person using the image will still need to pay for it and license the photo for commercial use. You can find a free image or illustration, but these images must normally still be accompanied by a license or permission from the copyright holder. As always seek your legal teams advice for specific cases.
Can you explain the difference between “commercial use” and “personal use”?
Commercial use is identified as any use intended for commercial, endorsement, advertising, promotional or merchandising purposes. Examples of commercial use could include a branded company website, brochure, poster, advert, presentation or product.
In most cases, personal use is defined as use that is not for commercial gain. A few examples of personal use or non-commercial use could include social newsletters or wedding announcements. Think about how the image is used and will its use lead to commercial gain.
Do I need to buy images for personal use, or can I use them for free?
The first step in order to use the images correctly for personal or commercial use is acquiring the correct license for either use. Like it was stated above, if you use free stock images or free illustrations, you need to make sure that the free content come with a license unless copyright law specifically permits the use.
If I own a business, but on the side I have a personal blog, which sends me a number of referrals, would this blog still be considered for personal use if I wanted to use another person’s image on the personal blog?
If the blog is for personal use only and doesn’t provide you commercial gain via ad revenue or promotion of your commercial operations, it could be argued that the site was not designed for the purpose of making money and could be considered as personal use. Just make sure you license the imagery properly and follow the guidelines outlined above.
I am the admin or owner of a Facebook fan page or Facebook group. Does this fall under personal use? I set up a group on Facebook for my business, does this constitute personal use?
Triple check to make sure that the use wouldn’t be considered commercial. You may need to purchase the license before using the image. Facebook groups and fan pages are created with the intention of promoting a commercial project or ones business. Facebook has a section on ’Protecting Other People’s Rights’ within its’ terms (www.facebook.com/terms.php?ref=pf) which provides some further guidance for users of its website.
Start your image search by asking your image suppliers or copyright holders?
1. Do you have the permission as the image supplier to license the image?
2. Can you verify that you hold the model and property releases for all of your imagery?
3. What type of extended legal protection do you offer if a claim is made against my usage and a dispute arise?
4. Do you employ photo editors and reviewers to scour the images in your collection that could potentially have copyright/trademark violations and you can describe them?