D O Y O U H AV E P E R M I S S I O N T O U S E T H AT I M A G E ?

O C W O M E N W H O W P

You have a website or a blog. Maybe you need to create a brochure or logo. You need photos or illustrations. But your right to use those images may be restricted, or even forbidden by the licensing or copyright of the image.

S O M A N Y O P T I O N S !

• Stock Image Agencies

• Free Image Sites

• Create Your Own Images

• Google Image Search (?)

People are overwhelmed and confused by the choices for images. They think if a site is providing free images, then they can use those images for anything as many times as they want. Clients will even give us images they’ve found doing a Google Image Search.

STOCK IMAGE AGENCIES

Getty, iStock Photos, photos.com, Shutterstock, Big Stock, 123RF, and more

FREE IMAGE SITES

Unsplash, Superfamous, Picjumbo, Pixabay, Im Free, Gratisography, Morguefile, Freeimages, and more

W H O T O U S E ?

S T O C K I M A G E A G E N C I E S P R O S A N D C O N S

PROS:

Large variety of photos and illustrations

The copyrights and licenses have probably been properly vetted

CONS:

Usually expensive (you buy credits, and depending on the license and size of image, the number of credits each image uses will change)

Different kinds of licenses: Rights-managed, royalty-free, editorial, “comping” and preview use, music, etc.

Yes, I “obtained” thiswithout permission

F R E E I M A G E A G E N C I E S P R O S A N D C O N S

PROS:

Who doesn’t love free?

CONS:

The licenses may not protect you as much as you think

Possibly restricted usage

The Creative Commons license, while supposedly the best thing since sliced bread, has some loopholes. And, you may only be able to use the image for personal use, not commercial use

C R E AT E Y O U R O W N I M A G E

Photography and/or illustration skills

Software - need to know how to use it

G O O G L E I M A G E S E A R C H

Google indexes images just like they index websites. Google doesn’t own the rights to those websites and they don’t own the rights to the images. It’s illegal to use them for yourself, personally or commercially.

This is great if you are a photographer or illustrator, have the right equipment and software, and know how to use it. Most people don’t. Microsoft’s “WordArt” doesn’t count and will make you look like an utter amateur. Just no.

C O P Y R I G H T ( S )

THE CLIFF’S NOTES VERSION:

The creator owns the copyright from the moment of creation.

The copyright owner may sell all rights to their image, or rights with limitations, such as geographic range, usage, and other limitations.

If the creator sells an image, that doesn’t mean copyright has been transferred.

Copyrights must be transferred in writing.

L I C E N S I N G

Licensing is when you sell restricted rights to use an image. The copyright owner determines what rights to sell.

People can sell their copyright to a company like Getty, who can then sell different kinds of licenses for different prices.

People (licensors) can provide their images to a free image site under a Creative Commons license, granting copyright permissions to use their work, “at least non-commercially.”

https://creativecommons.org/licenses/

FA I R U S E

Fair use means being able to use the imagewithout compensating the copyright owner.

Criticism, comment, news reporting, teaching,scholarship, and research—MAY qualify as fair use.

"Courts evaluate fair use claims on a case-by-case basis, and the outcome of any given case depends on a fact-specific inquiry.”

http://www.copyright.gov/fair-use/more-info.html

If the image is going to be used online, avoid fair use.

C R E AT I V E C O M M O N S L I C E N S E S

“Use Creative Commons tools to help share your work. Our free, easy-to-use copyright licenses provide a simple,standardized way to give you permission to share and use your creative work— on conditions of your choice. You can adopt one of our licenses by sharing on a platform, or choosing a license below.”

Except…

Anyone can upload an image and say it belongs to them to grant the license.

That doesn’t mean they didn’t get the image from a stock image company, or that it doesn’t belong to another copyright holder. CC is not checking.

“Our licenses grant only permissions under copyright and certain other rights that a licensor has authority to grant. Use of the licensed material may still be restricted for other reasons, including because others have copyright or other rights in the material.”

“Unless otherwise separately undertaken by the Licensor, to the extent possible, the Licensor offers the Licensed Material as-is and as-available, and makes no representations or warranties of any kind concerning the Licensed Material, whether express, implied, statutory, or other.”

https://creativecommons.org/licenses/by/4.0/legalcode - not light reading

G E T T Y ’ S “ E X T O RT I O N L E T T E R ”

You get a letter from Getty claiming you’ve used one of their licensed images (usually on a website). They demand hundreds to thousands of dollars for your use of the image(s). They nag you a few times, then threaten legal action. An attorney is probably required.

No “Cease and Desist” letter.

Dealing with the Getty Extortion Letter is a whole‘nuther talk.

G E T T Y - H O W D O T H E Y F I N D T H E I M A G E ?

They have software that crawls the web, looking for images.

Metadata indicating their ownership is embedded in the image. Even if you change the name of the image or resave it, it’s still there.

How they determine you don’t own a license to the image, I don’t know. But it’s not foolproof.

They will actually license public domain images and sell licenses to them. This can be a legal problem for stock photo agencies.

G E T T Y G E T S S U E D B Y A P H O T O G R A P H E R

Upshot: Actually, one doesn’t have to imagine Highsmith’s reaction. One can read all about it in the lawsuit she filed this week against Getty in New York federal court, accusing the agency of illicitly claiming rights to 18,755 of her photographs and seeking more than $1 billion in damages. The lawsuit also names Alamy, a British-based licensing agency that was purportedly the license holder whose rights were infringed. Neither Getty nor Alamy had the right to claim a license or copyright on her photos, she says.

Getty nowhere identified Highsmith as the sole creator or copyright owner of the photographs it was hawking to the public. Nor did it volunteer to its clients that the photographs were available for free, in high-quality digital format, from the Library of Congress.

In 2013, a federal court jury found that Getty and Agence France-Press had “willfully infringed” a photographer’s copyright on eight photos from the 2010 Haiti earthquake that the photographer posted on Twitter, but had been reposted without permission by another photographer. Getty conceded liability and, along with AFP, was slapped with $1.5 million in damages.

C H E C K I N G T H E O R I G I N AT I O N A N D U S A G E

TinEye Reverse Image Search

“You can submit an image [online] to TinEye to find out where it came from, how it is being used, if modified versions of the image exist, or to find higher resolution versions. TinEye is the first image search engine on the web to use image identification technology rather than keywords, metadata or watermarks. “

https://www.tineye.com/faq#what

Google Reverse Image Search is also available, but it’s not as good as TinEye.

https://support.google.com/websearch/answer/1325808?hl=en

Both have Browser Add-Ons.

W H O G E T S S U E D ?

The client whose site is using the image.

Then you - either directly by Getty et al.- get sued, orthe client sues you for negligence in not doing your due diligence. That may or may not be covered by your contract, and negligence may negate that part of your contract.

Even liability insurance or D&O insurance for your business has a provision for not covering you if there’snegligence or willful violation of the law.

M O V I N G F O R WA R D

Don’t assume you can use an image. Check its provenance, meaning the origin or source of the item.

Read the licenses for every image. Obey the license.

Make sure the license is appropriate to your usage.

Keep documentation of the source of your image and the license for it.

Ask a client for written proof of their license to use an image they give you. Or refuse to use it. Tell them you are making sure they don’t get sued.

Just because you are not making money from the use of an image doesn’t mean you can still use it without permission. You don’t own the copyright unless you created the image or bought the copyright. You don’t have a license to use it unless you bought a license.