Follow these guidelines to ensure you are using photography legally online and in your marketing materials
A picture is worth a thousand words. Nowhere is that more true than when incorporating an image into marketing materials or a website. Images snag readers’ attention, especially when they’re clear, sharp, and eye-catching. Unfortunately, most business owners aren’t aware of the laws that govern how a stock photo should and should not be used in your online and offline marketing materials, and as such they set themselves up for potential future problems.
Whether it’s the daunting cost of hiring an intellectual property attorney to provide specific guidance, or just the fact that business owners generally have 50 other more pressing matters on their mind, there is a consistent lack of good practices being followed by businesses when it comes to using third party images in their marketing. Rather than delve into the nuances of IP law, I thought a more practical approach was to provide readers with a quick guide to reference before using stock images in a website or print materials.
1. Royalty-Free stock images v. Rights-Managed stock images.
When you buy a stock image what you are actually buying is a license to use that image subject to the terms of the license that you purchased. So, the two extremes in terms of usage license are that you could buy an image with an unrestricted license, that you can use however you want, whenever you want, as many times as you want. And at the other extreme, would be an image that you can use only once on a particular document that you print on a particular date and distribute in a particular country. In practice, the two choices you’ll actually pick from are either royalty-free which is closest to a “use it however you want” or rights-managed stock images which is a much narrower scope of legal use.
Now that you know the rules about when and how you can use a purchased image, the next obvious question is whether those rules are enforceable and then whether in practice, they are enforced. As to the first question, yes, image copyright protection is well established in the United States, so if you are in the US, or in a country with which the US has a copyright enforcement treaty, these laws apply to you and there’s not real wiggle room.
The second, and more interesting question is whether these laws, in practice, are actually enforced. The answer there is mixed. Getty Images, who has a reputation as an aggressive protector of their images has sued a few dozen violators, but the vast majority of folks just get a nasty letter in the mail from a law firm asking them to pay a few hundred dollars. Most other image companies do even less to enforce copyright protection of their images. That doesn’t change the fact that improperly using stock images is against copyright law, just the chance that you’ll be caught violating it.
2. Only Purchase Images From Sources That Indemnify You for Violations
If you’re going to be legitimate (and legal) about how you use stock images, you might as well make sure that you’re buying them from a place that provides assurances that they didn’t steal the image themselves. Because if they did you may still be liable for negligently publishing the image without first investigating the image’s legality.
So when shopping for stock images the magic words you’re looking for are “indemnification”, which means that not only does the place you’re buying the image from promise that it’s not stolen, they will actually step into your shoes in case you are sued related to that image being stolen.
An indemnification is only as valuable as the company indemnifying you, but it’s at least it’s a strong indication that the company actually believes the images they’re selling you aren’t stolen.
3. Verify Personal Releases Have Been Obtained
If you’ve ever wondered why the local TV news shows a lot of people’s backs or feet when they show a negative story, it’s because of laws relating to obtaining personal releases. If you want to use someone’s image to sell or endorse something, or use an image in a way that hurts someone, infringes on their privacy, or defames them, you have to obtain a signed release from them, in order to protect yourself from a lawsuit.
So, whether you’re taking your own pictures to use, or you’re going to buy a stock image from a third party, watch out for images with – people’s recognizable faces, use of a building that isn’t a public space (like a recognizable residence), or trademarked brands, such as a word, a symbol, or a shape that a corporation or company uses to identify a product. These are the most common types of images which require a release.
4. Modifying a Stock Photo Doesn’t Eliminate Copyright Protection
There’s a common myth that if you crop or otherwise alter a stock image that you are in effect creating a new image and that act defeats the pre-existing copyright protection. While there are copyright exceptions for first amendment free speech type modifications, in a commercial setting those aren’t really applicable. Instead, copyright law prevents you from using all or part of an image without permission. In fact, copyright law still applies even if you actually create a new image, if what you’re doing is trying to reproduce the existing image exactly.
Understanding and incorporating these four basic guidelines when dealing with photos in your marketing materials or website will dramatically improve your company’s copyright law compliance. Employing best practices is in the short term, by helping you avoid receiving a nasty cease and desist letter or, even worse, having to answer for a lawsuit. It’s also helpful in the long term, as if you ever want to sell your business, you’ll have to represent in your sale documents that your web and print advertisements comply with all applicable laws including copyright.
The purpose of this article is to promote awareness of copyright issues that may affect business owners, and is not intended to provide either legal or professional advice. Business owners should consult with a properly qualified professional or with an attorney admitted to practice in their jurisdiction for individualized legal advice.
Photo Credit: This photo was found on Pixabay – a royalty-free photo site that is free to use and does not require attribution.
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