3 common image licensing mistakes to avoid

Alex Bigman

The Internet is a virtual galaxy of images. This sounds like a designer’s dream – unlimited access to cool photos for use in advertising, book covers, web sites and whatever other client work you may pursue – but it can easily become a nightmare if you don’t understand the implications of intellectual property ownership and image licensing.

The legal system of intellectual property really takes the adage “nothing is free” to a new level, in ways you might not expect. Most everyone knows that the copyright of an image or photograph automatically belongs to the author, but even knowing that, you can still fall into some common traps.

Here are three big and all too common mistakes to avoid.

1. Don’t treat the “download” button like a blank check
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download button
Watch out for flashy download buttons like this one on WallpapersWide.com

Say you find a cool image that would be perfect for the book cover project you’re working on. You’re about to start searching for the image’s licensing information to see if you’re allowed to use it, when you notice a big, highlighted “Free Download” button. Hoorah!

That means the image is yours – right? After all, if the author were worried about people using her image, she surely would not have allowed for free downloading.

Unfortunately, it’s not that simple.

legal disclaimer
The fine print on WallpapersWide.com specifies that “published content is believed to be authorized for sharing and personal use” and “if you wish to use these images for any other use you must get permission from their respective authors.”

Under most intellectual property systems, authors retain full copyright control over their work unless permission for use is explicitly granted in writing. A “Free Download” button does not change that.

Issues like this frequently come up on free wallpaper websites. True, wallpaper artists expect site visitors to download their work as wallpaper (personal use), but not for a book cover or some other such commercial use. Swiping wallpaper for non-wallpaper purposes could very well be illegal, so make sure you find actual licensing information or get explicit permission from the artist.

2. Never ask permission after the fact
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licensing dos and don'ts
A photo by catman-suha on DeviantArt.com

They say to never assume, and we all know the reason why. Well, the adage was never truer than in the case of third party image usage in graphic design: under no circumstances should you assume that the author of an image will be willing to sell the rights to their work, or that their price will be within your client’s budget.

Yet, plenty of designers make the following rookie mistake: you find a photo on the internet, perhaps on a portfolio site like DeviantArt – and along with it you see the author’s contact information.

licensing
The author explicitly forbids use of his image without permission. Even if not explicit, this attitude should be presumed by default.

So you fire off an email to the artist asking for permission to use her image in a commercial manner and ask what the price might be; then you go ahead and grab the image, put together an awesome design with it and present it to your client. No problem, since you’re already in the process of getting permission — right?

Not right. It is entirely likely that the author will refuse to sell the rights to use the image or will demand a price that your client cannot afford. Either way, you come off looking utterly unprofessional, and perhaps exposing yourself to legal trouble.

3. Always secure indemnity
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image rights
StockPhotoRights.com has an awesome video by SayItVisually, which explains the tenets of Image Rights

As we said earlier, most people know the rule that an artist automatically retains copyright control over her work. Based on that, you may conclude that as long as you get permission from the artist to use her image, you’ll be good to go.

Again, the matter is nowhere near that simple, because in fact there are a number of other, perhaps unexpected parties who may be able to exercise control over the circulation of the image. They are:

  1. People featured in the photograph
  2. The owners of trademarked symbols, such as logos, that appear in the photograph
  3. The designers of objects, like industrial products or even buildings, that are appear in the photograph

To put it somewhat pessimistically, that’s a lot of people capable of suing you.

If you’re using a professional photographer, typically you can trust that they have either avoided including the above elements in their photographs or have gotten permission from all the necessary people, though you should always check to be 100% sure.

But if you’re using an unknown photographer whose work you found on the Internet, how can you be confident she really covered all the bases and you won’t be left holding the bag—which could mean legal trouble for both of you?

legal guarantee
iStockPhoto’s Legal Guarantee promises indemnity

This is where those huge stock photo agencies, like Shutterstock, iStockPhoto or Getty Images, cannot be beat. These sites are able to offer their customers legal indemnity. That basically means freedom from legal responsibility. As long as you follow their terms of use, you will not get in trouble if the image you purchased turns out to be problematic.

For example, if the photographer failed to get permission from all the models, trademark holders and designers featured in the image and somebody sues, then the agency will absorb the legal blowback instead of you. Now that’s an insurance policy you can’t afford not to take advantage of.

A note about 99designs’ policy
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In order to preemptively avoid the above pitfalls for the protection of designers and customers alike, 99designs requires that designers only use third party imagery, the licensing information for which is explicitly known.

A designer using this material must declare the source to the contest holder by providing a link directly to the page where licensing information is listed.

For more information, visit the pages below

If there are any lingering questions please feel free to ask them in the comments!

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