Introduction
A designer friend once let me in on a secret, a secret she described as “the designer’s little secret”. She was referring to istockphoto.com as a preferred source of reasonably priced images for commercial and other use. That was many years ago now.
Since that time istockphoto has become a part of Getty Images (and is now known as iStock) and we’ve seen a proliferation of competing stock imagery sites such as shutterstock.com, graphicriver.net, mychillybin.co.nz, dollarphotoclub.com, dreamstime.com, bigstockphoto.com and fotolia.com among many others.
Stock images are everywhere these days, including on all manner of websites. I’ve used them, for both myself and clients, and I’ve reviewed the terms of use of multiple stock imagery sites that clients have been thinking of using, with a view to alerting them to risks of which they may need to be aware.
Now here’s the thing: not all stock imagery websites are made equal. I’m not talking about the range, quality or cost of their images, but of the terms of use that govern them. Many designers and site owners probably don’t read the terms of use in much detail and, to be fair, in some cases that’s hardly surprising as the terms of use can be turgid to say the least. But I suggest it can be important, particularly if you’re acting for commercial clients, to be mindful of a range of issues that can lurk within the terms of use of stock imagery sites.
So what are these issues? I set out below a broad range of them, by reference to the terms of use of a handful of the stock imagery sites mentioned above. Now, I’ve just referred to the “terms of use” of stock imagery sites, as if there were one set of terms for each. Note that that’s often not the case. Stock imagery sites often require your agreement to more than one set of terms. You may need to be careful that you’ve read all of them that apply to you.
When I refer to the “licensor”, I’m usually talking about the stock imagery service. When I refer to the “licensee”, I’m talking about the person or organisation that is purchasing a license from the stock imagery service to use the selected images in his, her, its or a client’s end site, product or service. IP is a common acronym for intellectual property (such as copyright) and IPR is a common acronym for intellectual property rights.
Images used at licensee’s risk
I have seen some stock imagery terms of use that provide little if any protection to licensees’ use of images in circumstances where, for whatever reason, the stock imagery service or its providers don’t have the right to make the images available for re-use. For example, the Membership Agreement of one service makes it clear that the service “does not warrant that the photographs available from the Site do not infringe the copyright or any rights of a third party”. This, in conjunction with the absence of an intellectual property rights indemnity in favour of the licensee and the exclusions of liability, means that a licensee would, essentially, be using the images from this service at its own risk. This may not prevent the use of images from the service, particularly when the Photographers’ Supply Agreement (for that particular service) that is binding on image providers requires them to warrant that they own all proprietary rights, including copyright, in and to the content they submit. In most instances, the magnitude of the risk is probably low. However, the absence of protection is a risk some users may wish to bear in mind.
In contrast to the position in these particular terms, in other terms of use the stock imagery service goes the extra mile of providing an intellectual property rights (IPR) warranty to its users and some cases even provides a limited indemnity to cover at least some of the loss those users may suffer if they face a breach of copyright claim in relation to their use of the images. For example, iStock provides an IP and privacy warranty in favour of licensees (except in relation to “Editorial Use Only” content). The warranty states, among other things, that a licensee’s use of the licensed content will not infringe third party intellectual property or privacy rights and that all necessary model and/or property releases for use of the content have been obtained. There is also an indemnity in favour of licensees for loss arising from lawsuits, claims or proceedings alleging that a licensee’s use of content is in breach, in essence, of third party intellectual property or privacy rights, subject to an exclusion of liability for indirect loss and a maximum iStockphoto liability of US$10,000 per piece of content.
If the quality and pricing of the images across these two services (for example) were the same, I know which one I’d prefer.
Single user restrictions
Some stock imagery services’ terms of use limit usage of licensed content to “one user in the member’s organisation” (the member in this context being the licensee / user) or state that the user can only “install and use the licensed images on one computer or other electronic device at a time”. These sorts of terms may state that if a member requires content to be used by more than one person, “the Member must download the Content from the Site for each such use or obtain an Enhanced Licence for a multi-seat licence for the Content”. In some corporate contexts, users may wish to consider whether they can get by with this kind of restriction of whether an enhanced licence is required.
“Editorial Use Only” content
I have seen a number of stock imagery provider terms which state that content that is marked “Editorial Use Only” cannot be used in certain ways. Sometimes “Editorial Use” may restrict use in certain types of websites. This may make it important to consider whether, if you’re using an “Editorial Use Only” image, you’re permitted to use it in the way you wish.
Web use limited to 72dpi
I have seen at least one set of terms of use which state that, when used on web pages, licensed images cannot be used at a resolution that is greater than 72dpi. Historically this is unlikely to have posed a problem, given that until fairly recently 72dpi has been a standard web image resolution. These days, however, 72dpi may be insufficient if you or your client need(s) to cater for the “high DPI” and retina devices now on the market (such as Apple’s retina devices). Some stock imagery services’ terms of use may be behind the times on this issue.
Care in use of images featuring models or other persons
Sometimes you’ll find terms of service which state that images that feature a model or person cannot be used “in a manner that would lead a reasonable person to think that such person uses or personally endorses any business, product, service, cause, association or other endeavour; or that depicts such person in a potentially sensitive subject matter, including, but not limited to mental and physical health issues, social issues, sexual or implied sexual activity or preferences, substance abuse, crime, physical or mental abuse or ailments, or any other subject matter that would be reasonably likely to be offensive or unflattering to any person reflected in the Content”. If you’re using these sorts of images from a stock imagery provider whose terms of use contain such provisions, you may need to pause to reflect on whether your use of the images is okay.
Sometimes terms may state, for example, that if any content featuring a model or property is used in connection with a subject that would be unflattering or unduly controversial to a reasonable person, one “must accompany each such use with a statement adjacent to the Content that indicates that: (i) the Content is being used for illustrative purposes only; and (ii) any person depicted in the Content, if any, is a model, unless the Content itself clearly and undisputedly reflects the model or person in such potentially sensitive subject matter in which case the Content may be used or displayed in a manner that portrays the model or person in the same context and to the same degree depicted in the Content itself”. If this were relevant to your use of a given stock image, compliance may have design or presentation implications. Where that’s the case, you may wish to look elsewhere for your image.
Guarantees and indemnities in favour of the stock imagery provider
It’s fairly common for stock imagery terms of use to contain guarantees and/or indemnities from the licensees/user in favour of the stock imagery services. Under some such provisions the licensee/user agrees to indemnify, defend and hold the service provider and its directors, officers etc harmless from and against claims and losses incurred by the service provider and others in connection with any breach by the licensee of the Membership Agreement.
In commercial terms these sorts of provisions seem fair enough. In essence they are saying that if you do something in breach of the terms to which you agree that causes the stock imagery provider loss, you have to cover that loss. You’re accepting the risk of not complying with the terms. However, in some countries certain clients – most notably governments – may not be permitted to grant guarantees or indemnities, either in certain circumstances or at least not before following a certain process. These sorts of clients, and those working for them, may need to be mindful of guarantees and indemnities in the stock imagery providers’ terms of use.
Conclusion
Stock imagery sites can be mighty useful but, if you use them, you might want to check that your intended use complies with their terms of use. Are the stock imagery sites going to go after you if you breach their terms? Can they effectively police the use of their images? Whilst the answers to these questions might be ‘unlikely’ and ‘possibly not’, some people might like to be safer than sorry.
(Featured image a cropped version of a photo by Sarandy Westfall on Unsplash. Credit isn’t required but I like to give it anyway 🙂 )
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