Taking Stock: Legal Issues on the Web

Buyer beware! Purchasing images online might be easy, but the copyright issues aren’t. Before you download, know what you’ve agreed to.

The days of looking through cumbersome stock catalogs to find the right images are fast disappearing: Searching on the Web is faster and easier. While the means of acquiring stock images has altered dramatically, the relevant copyright law has changed very little.

When buying or selling stock images on the Web, be wary of potential copyright traps. Copyright ownership in an image belongs to the creator or to the stock agency selling the work. When you buy a stock photo, you’re traditionally purchasing the form in which it comes to you—disk, CD, transparency—and a license to use the image in a specific way.

When you “buy” a stock image off the Web, it doesn’t come to you in any “form.” You’re actually purchasing a limited license to use the image for a specific purpose. If you use an image for something other than what you bought it for, the use constitutes copyright infringement.I

If you sell images to a stock house, the way the agency handles your images on the Web is very important to how much money you can make from your work. The more infringing ways a buyer uses your image, the less you and your stock agency will profit from the piece.

Online Use Agreements

Stock agencies want to make it as easy as possible for designers to see what they offer and to buy it. At the same time, stock houses want to make money for themselves and their photographers or illustrators.

Many agencies allow you to look at a sample of their collection on the Web, but you can’t download the images. They require you to handle the purchase and sale in a traditional way—by calling the stock house. It’s more time-consuming for the purchaser but safer for the agency and the artist.

Some agencies allow you to download images after filling out an electronic form noting how you will use the image, requiring online payment by credit card. Other stock houses allow you to download and use images through a Web-site agreement covering use.

A Web-site use agreement usually appears on an agency’s homepage with a link that says “Click here for user agreement” or “Terms of use.” Most sites also contain a statement that says by clicking through the homepage, you confirm your agreement to the terms of use for the materials on the site.

Most designers don’t bother studying the terms of a Web-site use agreement. But you’re bound by it anyway. It’s like the shrink-wrap licenses that come with software. Although legal problems arise from binding people to agreements they’ve never read, your use of materials on a Web site will be governed by the Web-site use agreement—whether you read it or not.

To see a standard Web agreement for the industry, check out the FPG User Agreement, which governs the use of downloaded images (www.fpg.com). The contract starts by letting you know that just by using the site and/or downloading an image, you agree to be bound by FPG’s terms.

The agreement allows you to copy an FPG image onto one hard drive in the U.S. and to use the image for comps. Comps use is limited to in-house presentations, rough drafts and storyboards. If you want to reproduce it for any other use—but specifically for advertising, brochures, editorial publications or multimedia—you have to contact FPG by phone and arrange to pay for the rights.

This contract, similar to other industry Web-use agreements, also covers the use of derivative works. Because it’s so easy to manipulate photographic images, it’s important to understand that any derivative works you create by manipulating an image from the Web constitute copyright infringement if they’re used in a commercial way without permission of the copyright owner.

The FPG agreement defines a derivative work as anything sourced or referenced from a pre-existing image, including any image that’s manipulated, cloned, copied, retraced, retouched, shrunk, stretched, darkened, lightened or included in a montage or collage. For any of these uses of the image, you must purchase additional rights.


Knowing the Limits

If you’re a photographer, illustrator or stock house looking to maximize your exposure on the Web while simultaneously protecting copyright rights, it’s extremely important to have an agreement that authorizes specific uses. While they’re not perfect protection, these contracts are better than nothing.

Whoever uses images off the Web runs the legal risks of inappropriate use. If you find images you want on a stock-house Web site, check the terms of usage before you download the files. Can you use the images the way you envisioned? If you’re not sure, call or email the stock house. A good general rule is that you can use the images in ways that enable you to determine if the graphics will work for you or a client and if you want to buy them. Any other use requires payment.

All stock houses, whether on the Web or not, require contracts to be signed before authorizing image use. These contracts authorize one-time, nonexclusive use of the image for a specific purpose and time period—usually six months to a year. The agencies require tearsheets to account for your use.

Staying Out of Court

Although the courts haven’t yet faced infringement problems related to stock art on the Web, it’s only a matter of time before a case involves inappropriate use of a stock image downloaded from the Web. Definitions of use can be tricky, as photographer Frank Wilcox discovered when he found his photographs used for purposes other than what he thought he had authorized (Frank C. Wilcox vs. Vail Valley Foundation, U.S. District Court in Colorado, 1993).

Wilcox authorized the use of his photographs for “promotional purposes only.” The buyer released seven of Wilcox’s images for “advertorials” in Ski magazine and six for a hotel-lobby display. The federal court found all of the uses to be “promotional,” even though it was a far greater use of the photos than the photographer intended or was compensated for. Always let the stock house know exactly what uses you plan for its images, whether you buy the images online or place your order via phone.

In another recent case—Sharpshooters Inc. vs. Retirement Living Publishing Co. in U.S. District Court in Miami, 1996—a stock house sued a magazine that asked to review some of the agency’s pictures. The magazine rejected the images and essentially re-created the photos using another photographer. Although the case wasn’t decided on the merits of the copyright-infringement claim (the case was settled without a ruling on the copyright issue), it’s another example of potential copyright problems that arise from the inappropriate use of stock images. Is it copyright infringement if you “re-create” a photo by copying the “idea” of the photograph? The law isn’t always clear.

The Web makes searching for images easy and fast. For artists and stock houses, this medium offers a huge potential market for their pictures. But the very ease of access creates the opportunity for problems. Whether you’re a buyer or seller—beware.

HOW June 1999