Imagery: Give Credit (And Payment) Where It’s Due

July 2018

Image: iStock

“You can’t use an image without permission from the creator of the work (and, almost always, a forthcoming payment).” I’ve contracted with creatives working as independent contractors over the course of my career, and, with good reason, I know and respect this fact. I’ve needed to restate this case numerous times to others within organizations in order to legally protect companies, clients and myself.

Here’s the deal with image makers: Unless the work that’s generated by freelance creatives is subject to work-for-hire status when they agreed to it contractually (which rarely happens), or falls within an exception to the general copyright statue, such as public domain, fair use or open access/creative commons, it’s illegal and unethical to use imagery as you please. By exploiting a creative’s work, you risk liability for copyright infringement with all of the associated legal and settlement costs, and damage to your reputation and the company you represent.

Assume images are copyrighted

Any original works of authorship fixed in a tangible medium—the stuff that takes content from drab to fab like photographs, illustrations, information design, graphic design, typographic design, collage, physical constructions, video and digital compositions of all types—are produced by creatives and they own their work. In fact, once a work comes into being, pursuant to federal law, a creator gets the copyright automatically, whether or not the copyright is wanted or needed. (These laws also apply to written works, movies, software and songs.)

If there’s no attribution on imagery you’ve found online, and even after you’ve conducted a reasonably diligent search for the creator of artwork, it may be considered “orphan works.” Think twice about posting that seemingly orphaned image on your company’s social media because the consequences could be dire, according to the June 2015 publication by The United States Copyright Office titled “Orphan Works and Mass Digitization.” A passage on page 34 of the publication states, “Currently, anyone using an orphan work runs the risk that the copyright owner may step forward and bring an infringement action for substantial damages, attorney’s fees, and/or injective relief unless a specific exception or limitation to copyright applies.”

License document considerations

Agreements outlining the terms of use of an image are how creatives earn their living. If you wish to use the work of a copyright holder, contact them or their representative and request permission to use the image via a legal agreement that protects the rights of both parties. There are all types of license documents that you can negotiate. It’s always best to get a license document in writing (and keep the documentation). A license document will outline the limits of the rights granted, contain clauses protecting the integrity of the licensed work and ensure payment of a fee commensurate with the nature of the use. Here is a list of considerations that may impact the fee you are charged for the nature of the use of the imagery:

  • Are you requesting rights for a print publication, online, or both?
  • If used in print, how many copies will be distributed?
  • If used online, for how long will the image be posted?
  • Will you use the image only in the context of the article or promotion that it was originally intended for use in?
  • If used online, will the image be on a password protected website?
  • If used online, how many estimated users will be viewing the copyrighted material?
  • Do you need worldwide rights?
  • How will you give attribution to the creator of the work?
  • Are you licensing for the exclusive “first right” to publish, reproduce, display, perform, distribute, transmit and otherwise make available each artwork for any purpose (including but not limited to the promotion of any product or publication), in any print, electronic, broadcast, mobile or other medium now existing or later created (“Any and All Media”), where “first right” means, with respect to any particular artwork, that the artist will not publish, reproduce, display, perform, transmit, or distribute the artwork through Any and All Media, or license others to do so, until thirty (30) days after your company’s first publication of such artwork in any form? (That was a short version of what a license document could include. Clearly, licensing rights can get a tad complicated.)

Keep in mind that, typically, any rights granted to you are non-transferable and non-sublicensable, meaning that you cannot transfer or sublicense them to anyone else—whether you are contracting with a creator for original work or a stock art and photography company.

It’s also important to use imagery that has model or property release forms signed. This allows you to use a photograph of a person or private property commercially (for advertising). The “editorial” use of a photograph is evaluated differently—if it’s “newsworthy,” a subject of a photograph’s rights are evaluated in light of constitutional interests. “Newsworthiness” is a First Amendment, freedom of the press interest that constitutes an editorial use and not considered a use of the person’s image for your own benefit. (I usually ask for a signed model release to be on the safe side of a challenge.)

Laws protecting copyright holders

Swipers beware! U.S. copyright infringements may soon be easier and less expensive for creators and small businesses to legally challenge thanks to legislation introduced called H.R.3945 – CASE Act of 2017. A recent article by The Hill titled “Small step for copyright, giant step for creators—The CASE Act” states, “The fundamental problem addressed by the CASE Act is that, because federal courts have exclusive jurisdiction over copyright claims and federal litigation [is] so expensive and complex, most creators and small businesses simply can’t afford to enforce their rights.” Well, they may be able to soon as this law would provide a streamlined process for small copyright claims to be heard by a three-judge board within the U.S. Copyright Office.

The reverberations for protecting and compensating copyright holders are being felt worldwide. There’s the EU Copyright Directive movement afoot that will force online platforms to share revenues with copyright holders. A recent article in The Hollywood Reporter states, “The members of the European Parliament have voted to reject a controversial overhaul of European copyright law that has been hailed by the creative industry, but condemned by social media companies and free speech advocates.” With the EU Parliament recently voting 318 to 278 against a committee proposal on the law, the EU Parliament said, “Parliament’s position will now be up for debate, amendment and a vote during the next plenary session, in September.” If this law is eventually passed, it may well have a rippling affect on laws in the U.S.

Solutions to an organized front

Although they are often lone wolves, visual creators are part of a well-structured industry with many established organizations advocating for their rights—from the American Society of Media Photographers, The Graphic Artist Guild to The Society of Illustrators, VAGA, Artists Rights Society and more. There are also firms and software programs whose objective is to track stolen copyrighted material and gain compensation. That said, here’s some additional pieces of advice for bloggers, marketers or anyone using imagery online or in print (including those memes you’ve been sharing): Purchase a subscription to stock art and use attributions, or shift the worries of perfectly pairing original or stock imagery with copy and the licensing responsibilities to professional content creators.

If you have any questions about imagery and copyright law, please contact an attorney specializing in copyright law.

—Maureen Joyce