Is this photo really free?
School children, college students, and professionals alike have all turned to the internet to find “just the right image” for a project or presentation at one time or another. With tens of thousands of options to choose from, it can be tempting to simply screenshot the one that stands out the most and be on our way…however as one of our recent clients discovered – that can have pretty stressful consequences.
A recent client of Lloyd & Mousilli’s contacted our firm after receiving what at first, she thought was scam correspondence from a copyright enforcement company. The correspondence related to her use of a “stock” image as part of a senior project from her university days…it appeared the owner of the photography she captured from an internet search had hired an enforcement agency to make demand and collect for the unlicensed use of his work. After receiving multiple communications from them, she sought out our counsel for peace of mind that “this was really nothing to worry about.”
Unfortunately for her, after a review, we determined that these were valid infringement claims on behalf of the original photographer. The images had been taken from an internet search and were clearly marked as registered copyrights. Just because an image can be found, does not mean it should be reproduced, even for non-commercial use, such as a school project.
What is a stock photo?
Stock photos, while generally available on the internet, are still pay to use creative works. The fees are typically determined based on type and duration of the intended use. For example, you might wish to run an artist’s photo as the heading on a particular issue of your newsletter and that would come with a fixed cost. If you then decided you also wanted to use the image on your website, it would require another negotiation and payment. All use is considered different and must be contemplated for and agreed to avoid infringement allegations.
What is a royalty free photo?
Royalty free photos typically come from a specific database where a one-time price is paid, and the image is then yours to use however you would like for as long as you would like. When using a royalty free image, there is no residual cost if you decide to increase or vary the way you are utilizing the photo in your projects or presentations.
The upside to using stock photography lies in the restrictions on their use. If you are planning a marketing campaign and wish to use a specific image – you can negotiate different rates to exclusive use of that image within your geographic area or industry. Before purchasing, you can often ask the agency who else is using the image and for what duration and purpose. This can help avoid duplicative branding, which can hurt the campaign due to confusion even if it’s lawful.
Understanding Photograph Ownership
Before clicking, screenshotting, editing, copying or in any way using a photograph on the internet it is a worthwhile endeavor to figure out who it belongs to. The internet and social media have made circulation and virality of creative work easier than ever before – but with that comes risk. Creators want to maintain control of the work and often may not seek enforcement until much later when potential infringement comes to their attention. This means that just because you may have escaped detection for now, doesn’t mean their may not be artists out their with legitimate claims against you, such as our recent client described above.
Intellectual Property as a Strategy
No matter which side of a copyright controversy you may find yourself, Lloyd & Mousilli prides itself in finding the best resolution possible. It is much easier to proactively make sound decisions such as verifying the owners of creative work before putting it into use or procuring the proper licenses to images.
Already accused of infringement?
If you have already received a cease and desist and demand for damages related to improper use of images– do not delay in reaching out to an intellectual property attorney. The potential damages continue to increase in connection with the length of improper use. In the event you have been wrongfully accused, you will need representation to defend the claims as well. As stated above, these are often legitimate claims and they will not go away on their own.