Taking Stock of Stock Photo Usage, Part Three - Crucial Legal Matters

Part 3 of 3 - Crucial Legal Matters [Series]

The reason that checking this factor is so important is simple: not all stock images are beholden to the same rules. Different photographers and graphic designers will feel comfortable with their art being used for different purposes. As tempting as it may be to bend the rules (after all, what are the chances that they’ll find out?) you must not. The reasons why are long and all-encompassing.

Copyright Law

This is the factor that complicates stock photo use, and not for the reasons one may expect. While copyright laws vary by country, they are also honored in most parts of the world. In the United States, for instance, the copyright is held by either the creator of the material in question, or if it was made as a part of an employee’s workplace tasks, their employer.

If you want to use a copyrighted work as a part of your materials, like a stock image, you have to make sure you have permission to do so. However, not all licenses are created equal, so you have to make sure that you’re permitted to use the image the way you plan to use the image.

Keep in mind that just because a photo is on Google Images, doesn’t mean that it’s fair game to copy and paste it into your materials. There are very specific requirements that must be met for something to be considered “fair use.”

Acceptable Instances of Fair Use

• The use of the material is in any of the following contexts: for educational purposes, researching and writing scholarly articles, to benefit nonprofit projects, reporting, writing a review of the material.
• The material is fact-based or public content, meaning that the person who wrote a fact down doesn’t own exclusive rights to that fact.
• Only a small percentage of the original image is used, so that it isn’t immediately recognizable--this can either refer to a fragment of the original image, or a very low-resolution version of the image.
• Your use of the material in no way deprives the owner of a new market or of income.

Instances That Don’t Qualify as Fair Use

• You were unaware that the material was copyright protected.
  This is why you should never just grab an image off of Google. Due to the way U.S. copyright law is written, copyright defaults to the material’s creator regardless of whether or not the copyright was ever officially documented. In other words, trademarks and copyrights don’t need to be registered--it’s mainly done for the sake of convenience should legal proceedings ever come about in regard to the material’s ownership. This is true even when regarding free stock photo sites--they are still copyright protected, and not all of the images found on them can be used universally.

• You’ve changed or modified the material in some way. This includes using a shrunk-down version of an image, or a thumbnail.
  Making a change to an image doesn’t make it a new image. As long as the original work was created by someone else, it (and the rights to it) belong to them.

• Assuming, just because an image doesn’t have a watermark or other copyright notice, that it may be used freely.
  Again, this is like the trademark matter that was discussed above--intellectual ownership doesn’t require documentation to be valid, it just makes it easier. By creating an image or any other form of intellectual property, the creator has control over that property.

• Linking the photo back to the source, using the caption to attribute it, or posting a disclaimer that the media you’re using isn’t yours.
  Despite what many of the “I CLAIM NO OWNERSHIP” disclaimers that accompany such materials claim, simply acknowledging that someone else owns a material without obtaining their permission to use it isn’t enough to keep you safe from recourse.

• Only using the image on your social media.
  As a business entity, your social media presence is very much an important part of your business, and unless you are operating as a not-for-profit outfit, this would disqualify you from using a stock photo on your business’ social media outlets. Even then, some other prerequisites of fair use may hold you up. By taking that image, you could be depriving its creator of the opportunity to profit from their own work while profiting from it yourself.

In the long run, it is almost certainly going to be easier for you to produce the image yourself, or to procure one through the proper channels. However, you even have to be careful when doing this, as some of the most tempting channels can trip you up as well. This is even true of images that have been licensed as Creative Commons images.

Creative Commons Concerns

Creative Commons licenses are commonly known as licences that a creator of a piece of work gives to others to use some of their work as a part of their own. That’s the simple explanation. In actuality, there are different levels of permissions that a Creative Commons licence can signify, which limits what may be done with those works--or in this case, those images.

These permissions are annotated with icons and abbreviations on the Creative Commons tag that accompanies true Creative Commons images.

BY: The word “by” represents Attribution, and when it’s found along with the accompanying image (the generic symbol for ‘human’), it signifies that the material is available to be used if (and only if) the original source is acknowledged.

NC: NC stands for NonCommercial, and as the crossed-out dollar sign symbol would suggest, any material branded with this symbol is open to be used in exclusively non-commercial purposes.

SA: ShareAlike materials are allowed to be used exclusively as a part of other Creative Commons materials with the same licensing. Its symbol is an arrow rotating counterclockwise.

ND: This abbreviation takes the place of NoDerivatives, which means that the material is not open to be altered before use. The symbol for NoDerivatives is simply the equals sign.

These conditions combine to make a total of six different Creative Commons licenses: Attribution, Attribution - NonCommercial, Attribution - ShareAlike, Attribution - NoDerivatives, Attribution - NonCommercial - ShareAlike, and Attribution - NonCommercial - NoDerivatives.

You may have noticed that all of these licenses require attribution to the original source and their ownership of the material. This is crucial to remember, as it means that no matter where you found the material to use, the Creative Commons license doesn’t count if you can’t give credit where credit is due.

Whether you elect to try to defend a fair use approach, or pull something from Creative Commons, you will need to be absolutely sure to mind your ‘p’s and ‘q’s and be certain that you are authorized to use the image the way you want to use it. Otherwise, you could find yourself and your business in a mess of trouble. Check all documentation to confirm that the source of the image provides to be sure that you are within your rights.

If there’s one lesson you take away from this, it’s this: avoid those websites that offer free stock photos. More often than not, these images aren’t licensed to be used commercially, and it just isn’t worth the risk of dealing with the consequences of doing so. It’s a much better approach to make the investment into safer marketing practices that, thanks to the boost an image gives your marketing, are ultimately more effective.

Of course, if you do happen to have the skills and equipment required, there is nothing stopping you from creating your own images to use in place of stock. Just remember, if your photos feature a person (or persons) in any way, you will need to have the model sign a photo release waiver that allows you to use their image for financial gain.

Final Thoughts

So, now you know how to use stock photos to their full capacity in your marketing efforts, without the risk of facing unwanted and inconvenient litigation. As you do so, remember a few last things: if your stock photos do anything, make sure they effectively convey the message you’re trying to get across, in a way that your audience understands. Visual content can hold a considerable amount of power. The imagery you use shouldn’t make them pause and think that it was weird you used that image for your business, it should reflect your particular brand clearly and appropriately.

You should also remember to always source your images from trustworthy outlets, such as stock photo sites that, while you will have to pay, will deliver you a high-quality photo that is worth it in the end. Fotolia is one of our favorites.

If you’d like some assistance with this goal, we’re always here to help with your stock photo needs. Reach out to us and let’s talk.