You cannot use copyrighted imagery without permission. Period. Or else…
Please understand the spirit in which the following information is given: Long experience tells us that our customers are completely scrupulous about adhering to the copyright conventions, and we make no assumptions to the contrary.
This info is to educate newcomers and folks who may not understand the implications of these issues. Copyright law is very strict and we aggressively protect the copyright interests of all our images. Our studio is very flexible and will often grant permission to use images for comping purposes if the client first comes to us and asks permission (which we will grant in writing) and they must also agree to certain terms (see section titled “Can I use an image for Comping purposes?” below).
Again, the following information is meant only to educate anyone who does not fully understand copyright protection and the possible penalties which can occur from infringing. We cannot stress enough that this is not a threat to clients… merely legal information that applies when dealing with images in general. Whether they be from our studio or another photographer or Stock agency, the rules are the same.
Incredibly painful mistake #1
Thinking that the worst thing can happen to you if you “steal” an image is that you can be forced to pay what you would have had to pay anyway.
Think again. Copyright laws provide for statutory penalties of up to $150,000 per infringement. “Borrow” a picture that you should have paid $24 for? Who’s gonna know, right? Somebody “catches” you, you pony up the $24 bucks, right? Nope. You have willfully “infringed” a legal copyright, and according to US copyright law, one who willfully infringes could be liable for fines up to $150,000 per infringement.
Incredibly painful mistake #2
Thinking, “Hey, let THEM prove I DIDN’T pay for the picture.”
“Intellectual Property” issues are different from a lot of things in the rest of the world. (“Intellectual Property” is how the law describes things like books, poems, symphonies and…photos.) In the rest of the world, if somebody thinks you stole something, they have to prove you did. In the world of “copyright infringement”, you have to prove that you DIDN’T.
Yep. That’s right…
Let’s say, for example, that a photographer sees one of their pictures used on your website. They can prove that it is, indeed, their picture. They own the copyright on it. They can make a demand that you prove that you have legally acquired the right to use the picture. If you can’t prove it (usually in the form of a paid invoice) you could find yourself in big trouble. Very big. (See “Incredibly painful mistake #1”, above.)
Incredibly painful mistake #3
Thinking to yourself, “Hey, I’ll just use Photoshop to remove all these pesky little copyright identifiers on this picture. Who’s gonna know?”
“Watermarking” involves digitally embedding into an image a symbol that identifies the copyright holder. The purpose of the watermark is to make it possible to determine who owns an image, the mark will usually be small and be located near an edge of the image — and may not even be visible at all or the watermark may even be placed prominently in the photo where it can’t be cropped out.
Many people don’t realize that under US copyright law, it is specifically illegal to remove a watermark from a photo. Not only is the act of removal prohibited, the courts assume that the very attempt indicates a willful intent to violate somebody’s copyright. And that’s something the courts come down really hard on.
[See “Incredibly Painful Mistakes” numbers 1 & 2, above]
Why we hate talking about this stuff…
Simple: In our years of doing business with many, many ad agencies and designers around the world, we have found that our customers are overwhelmingly honest and straightforward with no desire whatsoever to be anything but scrupulously attentive to the dictates of “fair play”. As creative people themselves, they understand the importance of “intellectual property” (their own as well as ours) and are utterly reliable– and a flat-out pleasure to deal with.
In short, we hate talking about this stuff because it makes us sound like we don’t trust our customers– and nothing could be further from the truth.
Why, then, DO we talk about it?
Why we talk about it anyway…
There are those who don’t mind keeping beginners “in the dark”– and then pouncing when they make a mistake. If we’re going to tell you that you shouldn’t even THINK about “stealing” a picture, we figure we ought to tell you what we mean– and why– and let you know that you could be getting yourself into much bigger trouble than you might imagine.
What if the image was used by mistake?
This is what is referred to as an innocent infringement. It is our policy to ALWAYS first assume that it could be an innocent infringement and give the offending party the benefit of the doubt. We first contact the party let them know that we saw the image being used and do not have records of it being licensed for this use. Many times the usage may have expired and they do not know that it ran out. Or perhaps, the image was in their files and someone just assumed they could use it. In these cases, we handle it very delicately and inform them of the fact that they have overstepped their bounds and ask them to research if there are any other uses we need to be aware of, at which point we give them a very fair market price for those uses. 95% of the time the clients are apologetic for the mistake and thank us for handling it in such a professional manner. There are unfortunately a small percentage of people who refuse to conduct business in a professional manner and just think they have the right to do whatever they want with out compensating the artist. These people usually find themselves dealing with legal matters… fortunately for the photographer, copyright law pertaining to the use of Intellectual Property and the penalty for infringing is pretty clear and the threat of legal action is often enough to make them see the light. For the rest, see incredible painful mistakes #1, 2 & 3 above.
What does “Intellectual Property” mean?
“Intellectual property” refers to original creations in the fields of literature and the arts. Most countries in the world provide automatic copyright protection to any item of intellectual property at the instant the item is created. At the instant a photo is taken, it automatically becomes the “intellectual property” of the photographer who took it. It makes no difference what the subject is or why the photograph was taken. Additionally, it is our practice to register each and every image we create with the U.S. Copyright Office.
Using pictures for “reference” – i.e. “Derivative Works”
“Derivative works” are works that are not exact duplicates of copyrighted material, but which are “derived from” those works, often by having been used as reference. Although laws vary from country to country, most “intellectual property” laws are quite clear about the fact that “derivative works” are just as “protected” by the copyright laws as is the original work. In other words, the “spirit” of these laws is that if you use a copyrighted piece of “intellectual property” (such as a photograph) for reference for a work of your own that you are creating, you may not do so unless you first contact the owner of the work and either get permission in writing or purchase the RIGHTS to do so.
What IS “copyright infringement”, anyway?
Legally, the person who holds the copyright to a photo has the absolute right to control how you use that photo — or to deny you the right to use that photo at all. Any unauthorized usage is an “infringement” of the copyright. Many people don’t realize just how all-encompassing a copyright is. For example, there’s a common misconception that any image appearing on a website may be downloaded and “saved” to disk. This is absolutely not the case. The very act of saving a copyrighted image to your local disk — regardless of whether you ever do anything else with the image or not — constitutes a copyright infringement — minor, perhaps, and done all the time, but an infringement nonetheless. And infringements large and small are “actionable” (i.e., can be grounds for a lawsuit.)
Why are penalties for copyright infringement so severe?
Copyright laws exist to encourage people to be creative by giving them the right to control — and benefit from — the products of that creativity. Because it’s so easy these days for one person to “steal” the creative output of somebody else, lawmakers have recognized that for copyright laws to be effective, they must have real teeth.
If copyright infringement resulted in nothing but a slap on the wrist, there are unfortunately those who would say to themselves, “If I get caught, I’ll just pay the fine and consider it a cost of doing business.” Lawmakers in the US have figured that $150,000.00 — the maximum fine that can be awarded per infringement — is a figure large enough to discourage that attitude in most people.
Can I use an image for Comping purposes?
It is our studio policy that if you first call us and ask us permission (which we will give to you in writing) and agree to our terms and conditions, you ARE allowed to download “comping versions” to “try out” in your layout. But the terms state that you are specifically NOT allowed to use the images in any OTHER way, unless you secure the proper “copyright” permission to do so – by purchasing the image. And, by the act of downloading, you are agreeing to those terms.
How to keep yourself out of trouble
All you really have to do is respect both the letter and the spirit of the copyright laws — and use common sense. Obviously, you’re taking a big risk if you download images willy-nilly without regard to who owns them and whether you have permission to do so. Most photographers and All stock agencies include Terms and Conditions for downloading images right on their website. Read them. Observe them. They tend to have a lot in common but they’re not all identical. The devil, as they say, is in the details.
Once you ask permission we may permit you to download an image to use for creating comps and for “pitching” a client. But that doesn’t mean you can use the image as an “end-product” in itself without paying a fee — even if the use is internal to your company. Whether or not the image is watermarked, you may not use it in any other manner except as specifically permitted in the Terms & Conditions at the time that we give you approval — unless you pay the required fee, of course.
One word of caution: you would be surprised at how often we get calls from people who want to use an image but can’t do so because they don’t know where they got it from. “I downloaded this image and sold the client on it and now can’t figure out who shot it…. Is it yours?” There is a simple solution to keep you from having this problem… you should set up photographer-specific or agency-specific folders on your computer into which you download images. That way, you’ve at least got a chance of determining later on who to contact for permission when you’re ready to “go” with the image. You don’t want to be in a position where you’ve got an approved project but you can’t figure out who to obtain the rights from in order to be able to use an image that is integral to the design.