sing an unlicensed image for a personal blog post without any commercial intent might not seem like the end of the world. Doing the same for product packaging, a company website or even marketing material is quite another matter. Once discovered, you could expect little time to pass before you receive a cease-and-desist letter from the image's copyright holder.
The use of copyrighted imagery without a proper license is among the most widespread of Intellectual Property (IP) rights violations, and its consequences can add up quickly. But a little knowledge goes a long way: You can avoid this problem with an appreciation of copyright standards and by following some simple steps for image sourcing and licensing.
Copyrights are exclusive rights, meaning even limited, non-commercial distribution of protected material such as that described above likely infringes on the authorizations reserved to the IP owner. Though copyright laws across the globe have their variations, they are largely harmonized by treaties like the since-revised Berne Convention for the Protection of Literary and Artistic Works (1886). As artistic works, photography, drawing, painting and similar modes of expression are automatically invested with copyrights at their moment of "fixation" – or when they are created, so to speak.
Like other forms of IP, copyrights give their holders the right to license their works and profit from doing so. Some photographers and artists negotiate licenses themselves or through agencies. Others license to royalty-free image providers like Getty Images, Shutterstock or AdobeStock. Such organizations then sublicense to individuals or businesses, who pay a one-time fee for the image.
Before you purchase a license for one or more images, there are some factors you need to consider.
Do you want to use the image for marketing a product or adding visual embellishment to your business's webpage? In both cases, you must obtain a license that explicitly confers commercial use, as this permission is never taken for granted.
How, where and why you plan to display an image has a big impact on the kind of license you need. You must be upfront about your intended purpose and stick to any commitments. If your plans change, you can either modify your existing license or pursue a new one.
Commercial licenses can be royalty-free or rights-managed. A royalty-free license is nearly unlimited in terms of duration, market purpose and frequency of reuse and often requires a single upfront payment. With a rights-managed commercial license, the licensor can charge a fee, or "royalty," per each intended usage. Since the licensor controls how and when the copyrighted material is employed, they can restrict the image from being used in association with specific industries or products.
Single-use or resale
If you are using an image only once (in a blog article, web page, social post, etc.), a single-use license is sufficient, but you must strictly adhere to the terms. If you know you will need to resell or redistribute imagery, e.g., as a marketing agency providing white-label content to clients, obtain a license that allows this.
Photojournalists and other independent photographers may insist on (and charge significantly for) single- or limited-use licenses, whereas resale or frequent-reuse licenses are often available from large third-party providers.
Some rights-managed image licenses are exclusive, meaning only a specific licensee can use them – in a particular territory, if relevant. In almost all cases, this will be much more expensive to obtain than a non-exclusive image license, but it may be necessary in highly competitive sectors or where unique access is at a premium, as in journalism.
If you purchase an exclusive license to a photograph, you obtain the right to use the image and keep it out of competitors' hands. Any licensor who exclusively licenses a picture to you and then repeats the transaction with another party is just as liable for breach of contract as you would be if you had broken your end of the agreement. This, of course, assumes no geographical restrictions apply.
Creative Commons and other alternatives
Founded in 2001, Creative Commons (CC) is a nonprofit organization that serves as a clearinghouse of sorts for the licensing of literary and artistic works for free. Using its Openverse search engine, users can browse millions of free photos, imagery, audio and written works. CC may be the simplest solution to your image-licensing needs, though it also has its limitations.
Using a copyrighted image without permission or a license is not a "victimless" act. Artists have the right to be compensated for their labor as well as the right to control how their work is distributed.
Levels of permissiveness
There are six CC licenses of varying accommodation and a public domain dedication, referred to as CC Zero (CC0). Photos and other art donated to the public domain through CC0 can be freely used in any way, without attribution to the original artist. On the downside, the assets available under this designation might not be suitable as the selection is reduced.
The actual CC licenses offer the user varying latitude. At one end of the spectrum, a CC BY license only requires credit be given to the creator whenever the licensed asset is publicly displayed or reproduced. Conversely, the CC BY-NC-ND license allows copying and redistribution with attribution, but a work cannot be used for commercial purposes, altered or derived from. Three of the six CC licenses permit commercial use — CC BY, CC BY-SA and CC BY-ND — so be sure to choose appropriately.
Other free image options
The aforementioned royalty-free image libraries have a significant number of competitors offering free-to-use images as an option. Unsplash, Pexels, Gratisography and Canva are just a few of the better-known examples. Even market giants provide free images for non-commercial use: Getty Images has a collection of 66 million pictures for exactly this purpose.
Some of these sites offer their own licensing agreements with unique restrictions: Unsplash, for example, allows virtually any use of its images so long as they are not used to create a direct competitor or resold without significant alteration. Others use CC0 or CC licenses. These sites may also have optional paid membership tiers that offer greater flexibility of use — or, in Canva's case, allow you to create custom imagery.
Inevitably, the main issue when dealing with image sites offering free licenses (CC or otherwise) is the breadth of selection. These libraries simply are not as large as paid-for equivalents, so their usefulness in a given case depends on the specificity of your image needs.
An image licensing checklist
When looking for licensed images, there are some tips that will help ensure that you find the art you want while protecting the rights of copyright holders:
- If the image you need is highly specific, consider seeking out a freelance photographer or artist directly, either to commission new pieces or license any work from their portfolio.
- Be sure to review the licensing agreements carefully,
regardless of where or from whom you source your images.
- Royalty-free and Creative Commons licensing agreements will usually be somewhat standardized, while rights-managed licenses can vary wildly.
- Look closely for any restrictions on intended use (principally, commercial use), attribution requirements, exclusivity options and provisions for resale, redistribution and modification.
- As with other forms of IP licensing, geographic restrictions may come into play, similarly with time limits.
- Both the licensor and licensee should be fully aware of all contractual limitations and the consequences of violating them.
Whether you are an organization looking for the right licensing arrangement or an artist who wants to keep their creative portfolio protected and earning, Dennemeyer provides the expert counsel and services you need. Now that is the very picture of the IP system at work!
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.