I had an interesting conversation with a potential new client the other day and it turned to stock photography – one of my favorite subjects, of course. Photography can make or break a website. The more professional it is, the better your website will look. But, are you properly licensing your photos or are you guilty of copyright infringement? And, what about photography that has been added by a professional website designer to your site?
As those who have worked with me know, I do not advocate just pulling photos for your website from Google, Pinterest, Tumblr, or anywhere online, and using them on your own site. More often than not you are breaking copyright laws by doing this and you are setting yourself up for a world of hurt.
There are stories online of many stock photography companies that will go after you for monetary damages if you do this and it can be a nightmare. The size of your company or blog doesn’t make a difference in these cases either.
DMCA is an acronym for the Digital Millennium Copyright Act, a US law that protects digital copyrights, including the intellectual property of bloggers.
The DMCA Notice
If you use someone else’s photograph, and are lucky, you will just get a DMCA takedown notice. According to Blogging.com, “DMCA is an acronym for the Digital Millennium Copyright Act, a US law that protects digital copyrights, including the intellectual property of bloggers. The DMCA came into law as digital music pirating became epidemic in the 1990s. The new law gave musicians and music publishers a process whereby they could stop illegal sharing of their music.”
They go on to point out that, “although it may sound counterintuitive, the thief isn’t the recipient of a takedown notice. Rather, the platform on which the stolen content is housed is notified that it is legally liable for ‘taking it down’ off their servers. It may help to think about the DMCA law as similar to the laws against selling any type of stolen merchandise. For example, a pawn shop owner can be arrested for selling stolen merchandise — even if the shop owner had nothing to do with the theft or had no idea it had been stolen.”
Steer Clear of the Copyright Infringement Ambulance Chasers
However, if you aren’t as lucky, far worse could ensue. I have read countless stories of bloggers, even small ones who make no money, who have been sued, or threatened with a lawsuit, because of copyright infringement on a photograph they have used on their website.
There is a whole cottage industry of copyright lawyers who make their money on a contingency basis, taking 40% to 50% of what they get, by hunting down unsuspecting bloggers.
It’s impossible to tell exactly how much money they are making because most disputes are settled out of court and aren’t recorded. But, due to the scare tactics they use, these copyright “ambulance chasers” are making fat dollars for little work. Usually, it’s just from sending out one letter that scares the bejesus out of the recipient and makes them fork over the dough to make it all go away.
Medium and larger sized companies often are able to send such requests to their attorney to deal with, but small bloggers and small business owners don’t have the monetary power to hire an attorney to fight their case and often end up negotiating a price to be released from a potential lawsuit. Generally, it’s a price that they can ill afford to pay, but they feel the alternative is way scarier. These lawyers are counting on that.
According to The Content Factory, in an article they wrote about such a lawyer who demanded $8000 for an image they used:
“If you use copyrighted images, you will get caught sooner or later. People who create copyrighted works hire companies that use computer programs to scour web pages for copies of those images. It takes time to find them, but the process is automated and runs 24 hours a day, 7 days a week. If you post something that’s copyrighted on a blog page that has links pointing to it and the author wants to monitor that particular image, an unauthorized use of it WILL be found eventually.”
And it doesn’t matter if you do things you think you are supposed to be doing like linking back to the source, listing the photographer’s name, or using it on a site that makes no money. None of that releases you from liability.
You are violating someone else’s copyright unless you have gotten express (I suggest written) permission to use the photo, or unless it is in the public domain, under Common Creative licensing (see below), or you have paid for the ability to use it.
It’s very important that you be sure you are using images legally on your website. The best rule of thumb: always assume that something is copyrighted, and unauthorized use of it would be considered copyright infringement, until proven otherwise.
Also, don’t assume that the website designer you are using is properly licensing the images on your site either. If you hire someone to build a site for you and they aren’t using properly licensed images, YOU are still responsible for that image being on your site. I can’t stress enough to be sure to have this discussion with your website designer or developer so you aren’t held liable for copyright infringement!
Free Stock Photography
There are plenty of great free photography sites online if you don’t want to pay for a subscription to a larger stock house.
These type of photography sites license their images under what is known as a Creative Commons Zero (CC0) license. This means the pictures are completely free to be used for any legal purpose. The CC0 license was released by the non-profit organization Creative Commons (CC) and they allow you to:
- Use the pictures for free for personal and even for commercial use.
- You can modify, copy and distribute the photos.
- All without asking for permission or setting a link to the source.
- Attribution is often not required (read the licensing on each website, however, as some do acquire attribution).
The only restriction is that identifiable people may not appear in a bad light or in a way that they may find offensive unless they give their consent.
Some of my favorite royalty free (and cost free) sites are:
- Pexels
- Pixabay
- StockSnap
- Death to Stock Photo
- Unsplash
- Gratisography
- Negative Space
- Life of Pics
- IM Free
- New Old Stock (great for vintage photography)
The public photo site, Flickr, also has a Creative Commons section, with literally hundreds of thousands of photos. Just be sure to adhere to whatever licensing restrictions your photo choice has in place.
You do need to be careful on some of these sites because they also advertise for some of the paid photography sites. They have to make money somehow, right? But, just by looking closely you should be able to determine what is advertising and make sure you don’t download or click on to some other site for photos.
Professional Photography Houses
But, as a professional graphic designer and website developer, I also pay for the “big guns” in terms of stock photography, with subscriptions to some of the better stock houses available, such as Adobe Stock, Getty Images, iStock, Shutterstock and DepositPhotos. Many of these services charge a monthly subscription fee, which gives you access to a certain number of photos per month. Often unused credits will roll over to the next month.
You can also pay for image licensing on a per image basis if you don’t feel like you are going to need a lot of photos on a regular basis. Just be sure to keep all documentation and receipts when you purchase an image or clip art, to be sure that you are covered if someone comes along later and claims you are guilty of copyright infringement and are not using a properly licensed image. Those receipts are your defense.
Image Use in Client Projects
I was asked how this works in terms of the paying work I do for my clients, whether it is a website design or a brochure design made to be printed.
If you are a client of mine, I am licensed to freely use my stock photography subscriptions to add photography to the work I do for you. Sometimes there are restrictions, such as a number of copies or impressions that can be run with a particular image. But, that is generally a very high number – much higher than what the majority of my clients are doing.
If the image is being used in printed material I always ascertain the number in the print run. This allows me to make sure we are using a properly licensed image in the project. I am sure I have had clients that have wondered why I ask them how many copies of an item they are printing if I’m not the one handling the printing job. This is why.
I also may ask if the item is going to be resold for profit if it is a printed item because there can be extra licensing that needs to be purchased for that as well.
Of course, the majority of my work is in website design and development for my clients, so those restrictions don’t apply. I am able to freely use my image subscriptions for work I am creating for my website clients.
I can use my stock images in the creation of your website pages and for any blog posts that I am directly putting online for you. Most licensing agreements allow for one (1) person – the subscription holder, in this case, me – to use the image and transfer materials or derivative work containing the image (i.e. your website or brochure) to their clients for reproduction. This is all within the scope of the licensing agreement.
Unauthorized Use of Stock Photography Subscriptions
What I can’t do with my subscriptions is have a client ring me up and ask directly for an image for something they are working on themselves. That would be me giving you the image, which would fall outside of the scope of my licensing. I also can’t share my username and password with others to allow them to gain access my stock photography plan.
Some other things I cannot do include:
- Bundle and resell the images as a collection to someone;
- Make the image available as a free download to people;
- Use a file to create an official logo that will be copyrighted or trademarked;
- Use an image in the promotion or sale of tobacco or alcohol products;
- Use and image of a model or person that endorses any political party, policy, candidate or elected official, among other things.
However, limitations will vary from stock house to stock house.
Commercial stock photography often comes with several types of licensing agreements. I am going to go over some standard ones, although they may vary from stock house to stock house.
Standard License
The Standard license generally allows you to use the downloaded File for the creation of all kinds of items (except Items for Resale or Items for Free Distribution, where the File plays a major role in the item and adds value to it).
- Unlimited use on websites as part of the main design or for blogging (a)
- Use in printed materials (up to a certain number of impressions or copies – this will vary depending on stock house) (b)
- Creation of all kinds of items such as online, brochures, other printed material
- Creation of items for resale or free distribution where the image plays a minor roll
- Cannot use in the creation of items for resale or free distribution where the image plays a major role or adds value to it
- Use in a logo where the logo will not be copyrighted
- Cannot use in a logo that will be registered for copyright
(a) Digital uses include: sites; advertising banners; screen savers; wallpapers; software (for PC and mobile devices); e-cards; e-mails; e-books; presentations (PowerPoint, Flash, etc.); movies, videos, and TV advertising; unofficial logos; personal use; etc.
(b) Printed uses include: advertisements in newspapers and magazines; printed advertising materials; covers and illustrations for books, newspapers, magazines; business cards; flyers; posters; CD/DVD covers; wrappers, labels and product packaging; stationery: folders, notebooks, pens, pencils and stickers; charms; calendars; mugs and glasses; mousepads; T-shirts, clothing; personal non-commercial use; etc.
Extended License
The Extended license includes all permitted uses under the Standard license, does not have any limits on the number of copies, prints or displays and allows you to use the downloaded File for the creation of Items for Resale or Items for Free Distribution in which the File plays a major role in the item and adds value to it.
- Unlimited use on websites as part of the main design or for blogging (c)
- Unlimited use in printed materials (d)
- Creation of all kinds of items such as online, brochures, other printed material
- Creation of items for resale or free distribution where the image plays a minor roll
- Creation of items for resale or free distribution where the image plays a major role or adds value to it
- Use in a logo where the logo will not be copyrighted
- Cannot use in a logo that will be registered for copyright
(c) Digital uses include: sites; website templates; advertising banners; screen savers; wallpapers; software (for PC and mobile devices); e-cards; e-mails; e-books; presentations, presentation templates (PowerPoint, Flash, etc.); document templates; any other templates; movies, videos and TV advertising; unofficial logos; items for resale and free distribution; personal non-commercial and commercial use; etc.
(d) Printed uses include: advertisements in newspapers and magazines; printed advertising materials; covers and illustrations for books, newspapers, magazines; books consisting wholly or largely of illustrations; business cards; flyers; posters; CD/DVD covers; wrappers, labels and product packaging; stationery: folders, notebooks, pens, pencils and stickers; charms; calendars; mugs and glasses; mousepads; T-shirts, clothing; items for resale or distribution; personal non-commercial and commercial use; etc.
Editorial Licensing
Sometimes images marked “Editorial Use Only” are sold under a limited Standard license, and are prohibited for commercial use or advertising. These images may contain images of people without model releases, private property, famous trademarks and other protected elements for which special permissions may be required for commercial use or advertising.
When files are marked as such you have to take all possible efforts to credit the copyright owner, give attribution to the copyright owners and/or stock photography house, and post a link to their website (if applicable).
These type of files can be used in blogs, articles on websites, newspapers, magazines, reference books, encyclopedias, whitepapers, film documentaries, etc.
They cannot be used for commercial purposes such as advertisings, trademark or product promotions, etc.
Conclusion
Choose the images you use on your website or in your printed material wisely and make sure you are following all copyright laws. The ramifications of not doing so are too great.
Have you run into issues with copyright laws? What kind of penalties did it cost you? What kind of time and stress did it cost you? Share your story below.
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