Responsible Image Use and You
When you’re looking for an image for a marketing project, the temptation is there to use whatever pops up in a simple Google search. Even when you think you’re doing the right thing – by paying for an image or taking it on your own – you may be setting yourself up for a cease and desist letter or even costly litigation.
When looking for media – whether images, music or even text – you have to ask the right questions.
- What do I need?
- Where did I find it?
- How will it be used?
- Who may take issue?
For all intents and purposes, Alice is the marketing department of a fairly successful small business, XYZ Corp. This year, they’ve decided to run some print ads in trade publications to try to stir up some new business. She plans on using images of people who are clearly happy with the company’s wares.
Alice needs photographs and has options for where to get them. She can: a) search for photos online; b) purchase photos from a stock image site; or c) take the photographs herself. Alice researches these options and finds the following points to consider.
Finding images online is ridiculously easy. A couple of keywords here, a click there, and, just like magic, the perfect image appears. Unfortunately, readily available does not mean readily usable.
Flickr, for instance has a “no known copyright restrictions” designation, leaving its users to do their own analysis of whether images can be used. And, because copyrights tend to run for a long time, and photography, in the grand scheme of things, is a relatively recent medium, the vast majority of images are unlikely to have fallen into the public domain by mere lapse of time.
When using photos that you found online, there are a few things to consider:
Right to Privacy. Normal, non-celebrity people enjoy the privilege of being kept out of public scrutiny. Using the found image of an average Joe compromises his ability to remain anonymous, possibly violating his right to privacy.
Right to Publicity. On the flip side, celebrities depend on their personal brand for their livelihood. Without getting permission, using a found image of a celebrity (or even the celebrity’s name) in an advertisement for XYZ Corp.’s products could be a right of publicity violation, a false endorsement, or an act of unfair competition. This could result in a lawsuit. If you want to use a celebrity’s image, name or likeness, the best way to start is by visiting the contact page on their official website (if they have one). Typically, these endorsement discussions go through the celebrity’s agent or estate.
Ownership. A simple rule for any media is if you didn’t make it, you don’t own it. Even if an image doesn’t feature people, the ownership rights – such as making and distributing copies, incorporating into other works and commercialization – belong to the creator.
Stock Photography Sites:
Stock image sites, such as Getty Images or Shutterstock, are a great for professional quality images. However, you need to be aware that unlimited use of the image may not be what you’re purchasing; you’re likely buying the right to use that image in certain ways. Depending on where and how you plan on using an image, you’ll have to choose the appropriate license to fit the usage rights.
Rights Managed. A rights-managed image is usually priced according to how you plan on using it, such as editorial versus commercial use.
Royalty Free. Many royalty free images can be used most anywhere, in any manner, for as long as you want. But “royalty free” is not “free.” Instead, pricing is typically an up front fee that is determined by image size, quality, scope of use and content.
Subscription. Some sites offer subscription packages that allow you to download a set number of images each month and use them royalty free or according to other terms.
With so many things to consider for using online and stock photographs, it might seem like the easiest way to obtain images you can use is to take them yourself. Whether you act as photographer or hire a professional, there are a few things to keep in mind – such as privacy/publicity and, once again, ownership.
Model Rights. Say, for instance, you want to use an employee in your image. Even if he is a willing subject and understands that it will be used commercially, you’re not out of the woods if you do not have a written agreement. Should that employee quit without a written agreement, he can try to compel you to cease using his or her photograph. Getting signed model releases from subjects in order to use his or her images helps avoid this altogether.
Photographer Rights. Even though you’re paying a photographer for his services, the photographer still owns the rights to any images he takes (just like any freelancer). You must get a license to use an image from the hired photographer – or get a full copyright assignment unless the purpose for which the image will be used is clearly understood.
Poor Alice. Feeling that she couldn’t win, she gave up completely. She quit her job at XYZ Corp., sold her condo downtown and built a yurt in the forest where she happily holds conversations with many a woodland creature. It was probably an overreaction, but she no longer needs to ask for image licenses – or advice from an attorney.
Fortunately for you, navigating media usage isn’t that difficult. Yes, there are things to watch out for. But it’s nothing that millions of marketing teams don’t do every day. When you ask the right questions and stay mindful of who owns the rights to what media, the perfect photo is just a click of the mouse or the shutter away. And, of course, you can always call a Boyle Fredrickson attorney if you have any doubts.
About Boyle Fredrickson
Established in 1999, Boyle Fredrickson has grown to become Wisconsin’s largest intellectual property law firm. You’ve got ideas, we protect them.