You’d think that microstock companies have nothing to worry about. This time last year, iStockPhoto was predicting revenues of about $200 million — and that after Getty had bought the company just three years earlier for $50 million. Six months ago, Fotolia announced that it had 8 million images available, and as companies battle for plug-in space on the ribbons in Microsoft Office 2010, these hardly look like difficult times for the low-cost image industry. And yet something does some to be bothering the stock world as a whole. It’s a threat so large that Getty, Shutterstock, PACA (Picture Archive Council of America) and BAPLA (British Association of Picture Libraries and Agencies) have all teamed up to fight it together.
They’ve launched StockPhotoRights.com, a website intended to educate image buyers about the rights issues associated with photography. According to Shutterstock:
“Stockphotorights.com is an educational resource which unravels the complexities and exposes the potential legal pitfalls of image use. It is intended to provide image users with information and advice so they can purchase and use images with confidence.”
In fact, the site has the exact opposite aim: it’s intended to undermine the confidence that images users feel when they help themselves to photographs that they haven’t paid for or which are licensed directly from the photographer. And there may be good reason to do so.
Four Kinds of Rights Owners
A survey by Redshift Research of 1,200 new and established image users in the US and the UK involved in sourcing stock imagery, and released with the launch of StockPhotoRights’ website, revealed that almost 45 percent of respondents were unaware that they could face a legal claim relating to an image they’d used. That’s true even if they’d paid for a license.
The threat, if the image has been paid for, doesn’t come from the photographer – the more usual source of trouble when images are taken without permission. But it might come from the owners of three other rights in the picture, those related to models, trademarks, and designs. Buy an image that contains a recognizable individual, for example, and if that person complains, the image user would be liable even if they’ve bought the picture from a photographer. The same is true of a business whose logo appears in a photo, and even of a product that’s easily identifiable and the main subject of the picture. Shutterstock, for example, not only refuses images of people without model releases, it would also not approve an image for commercial use that shows an isolated, identifiable car in case the auto-maker complained about the final usage. It may however accept “generic-looking” objects, including those that have been digitally altered to remove logos.
Those multiple rights issues are a concern for image users licensing some photos directly from photographers. They’re also a problem for photographers selling certain types of pictures through their websites or on Flickr. They need to make sure that they have model releases for the people in their images and that they’ve removed any commercial logos.
Forty-Four Percent of Image Users Source from Google
But direct sales like these are rare in comparison to the large numbers of licenses sold each day by stock companies. A much larger threat to the growth of the stock industry comes not from individual photographers but from images stolen from search engines and photos licensed as Creative Commons. According to Redshift Research’s survey, an incredible 44 percent of small business decision makers admitted sourcing their images from Google Images. The survey didn’t make clear whether those images were used as specs for internal purposes or actually placed in commercial publications (although it did indicate that the 22 percent of image users who license images from photo-sharing sites use them commercially) but it does suggest a real problem among image users who fail to understand that a photographer owns the rights to an image that appears in Google — and that others may own the rights to elements within the photo.
And, of course, it’s an important sales point for stock companies whose prices include indemnification against legal complaints, and which employ selectors to filter out potentially problematic compositions. According to Shutterstock, one of the main reasons the site has been successful is that it can stand behind its images and provides signed model releases when necessary.
If the aim is to persuade image users to pay for that indemnification though, it’s hard to say how much a site like StockPhotoRights will help. The site’s case studies focus in part on illustrating the kinds of issues that could face bloggers and website owners, but it’s those small users who are also the ones who feel the most immune. The chances that someone would spot their picture on a blog or that BMW would sue a small blogger for using a picture of one of their cars are pretty small. Even when photographers themselves complain about illegitimate image use, the response is more likely to be an apology and a quick change of image than a willingness to cough up money for a stock photo.
In fact, one of the few instances of a law suit described in StockPhotoRights’ news section links to a case brought by a Greek man against a Swedish company that used a picture of him to sell Turkish-style yoghurt. He’s claiming a frightening $6.9m in damages. Unfortunately for StockPhotoRights, the dairy company’s defense is that they bought the image from a photo agency.
Small photo users, the ones most likely to use legally questionable images, may be put off stealing images or licensing photos that don’t come with all of the necessary permissions, but only if they see other users like them facing lawsuits. Until then, the stock world, photographers and other rights holders will struggle with breached rights in the same way that the music industry has struggled. A better target for education then may be not users but photographers. Even if the publisher is liable for the way an image is used, and not the photographer, few sellers want to face complaints from their customers. If you’re selling your images yourself or making them available with Creative Commons licenses, you need to make sure you’re not offering pictures for commercial use with rights issues.