Most content creators are well aware by now that a Google image search is not the right way to go about finding an image or images for their blogs and other online content. So what are the best options in 2021 and beyond, and what are some of the legal limitations that creators should be aware of?
***Disclaimer*** We are not lawyers, and none of the content of this post should be taken as legal advice. Copyright laws vary significantly throughout the world, and you should always be aware of any relevant laws to your location.
In the earliest days of Eucalypt, 15 years ago, we were a startup digital marketing agency working remotely from a semi-rural town in Maine. As content creators ourselves, we have always been aware of the importance of compensating creators for their work and have always properly licensed royalty-free materials for client work when it was needed.
In addition to content marketing services, we also offered web development, and like most agencies, we had a portfolio page on our website showcasing screenshots of our completed client projects.
For this reason, it came as a huge surprise to receive a cease and desist/demand letter from a large photo licensing agency regarding an image on our website. The image was a thumbnail version of the homepage of a site (amongst other client designs on the same page) that I had developed for a national non-profit.
The homepage design used an image that was correctly licensed for the client. However, it never occurred to me at the time that this picture-within-a-picture usage was going to be an issue for anyone. Obviously, we removed the image from the site and server right away, but the $1xxx demand for the unintentional infringement seemed ludicrous. We consulted with our business attorney that week, who agreed that it was highly unlikely that the company would pursue it if we ignored the demand. Still, we chose to offer a pennies on the dollar settlement check with a letter stating that the matter would be deemed closed forever if the check were to be cashed. Sure enough, less than a week later, the check for a small fraction of the demanded sum was cashed, and we never heard another word on the matter.
It goes to show that no matter how aware you are of trying to do the right thing, you can still be caught off guard. Needless to say, ever since this incident, we have been even more vigilant in our usage of images for our own and our client’s content.
So what options do you have when sourcing images for your content, and what are the pros & cons for each?
This is one way to guarantee exclusive content, but it comes at a cost. It involves utilizing the talents of your company’s staff or hiring a photographer or graphic designer to produce original content for your project. This can either be produced as work-made-for-hire, meaning that the hiring party owns the content copyright, or licensing agreements can be worked out that allow for exclusive use (often for a set period), while the copyright is retained by the image creator. Online web industry magazine, A List Apart does a fantastic job with this, with original illustrations for articles by staff illustrator Kevin Cornell.
Rights-managed images can be found from agencies such as the Associated Press. They are generally premium images, often by very respected photographers. The user pays to license the image only for very specific uses, and a limited time period, after which another payment would be due for continued use. This means that you could pay to use any image on a website, however, you would not be able to use the same image for printed materials without an additional license. This model of image licensing usually allows for exclusivity during the licensing period, as well as the ability to know where it has been used in the past (something that can be pretty useful to know). This is something that you can’t get with royalty-free images.
Using rights-managed images may make sense when used as part of an online advertising campaign when you want to be able to know if it has been used by competitors in the past, but doesn’t make much sense for content you plan to keep on your site indefinitely, such as a blog post.
Royalty-free images are most commonly sourced from vast online libraries such as Shutterstock, and Depositphotos. Most of these libraries are quite good at curating their collections and ensuring that the images they license are all high quality and that appropriate model and property releases are on file. They can be used with relatively flexible licensing terms, and are often quite cheap, ranging from several dollars for a small image used on the web to $100+ per image for high-resolution images for printing.
These types of images often have extended licenses that allow for use in products for sale such as t-shirts, mugs, etc., but this flexibility comes at an extra cost, which can be as much as 10x regular license use.
It is also important to understand that there is no exclusivity with these images or videos, meaning a competitor has every right to use the same media in their projects.
As well as paid royalty-free libraries, there are also free stock libraries such as Pexels, where you can find images to use at no cost. These libraries tend to not have the same quality control compared to paid libraries, meaning that the quality of images can be anywhere from very poor to great. This also means that it can often take much longer to search through and find something suitable than in a commercially curated collection. If these images are used, the licensing terms still apply, which in most cases means you must provide visible attribution to the creator at a minimum.
One particular problem with this image source is that many of the image uploaders are not up to speed on copyright law and may provide images that are a legal liability to the end-user. Something as simple as uploading an image of a person wearing clearly branded clothing or not obtaining a model/property release could land the end-user in legal hot water.
Like free stock libraries, this can be a hit-and-miss affair, with no curation or quality control. There are a number of different sub-licenses to navigate under the Creative Commons umbrella, and while the usage is free, the end-user must still respect the terms of the license, which may or may not allow for commercial use and modification amongst other restrictions.
CC0 licenses are the equivalent of the creator putting the work into the public domain, and there are no restrictions on how it is used, and no attribution is required. CC-BY licenses allow for all types of use; however, attribution is required. How that attribution is provided by the user largely depends on which version of the license was used. CC-BY 4.0 is the current, and easiest to follow, but earlier versions may require more complex attribution elements, such as the title of the image as well, rather than just the creator’s name and a link to the license.
One issue that I have seen with the attribution requirements for CC images is that in many modern content management systems, it can be difficult to display the attribution as required by the license without getting into the underlying HTML code–making it difficult for non-technical users to implement. For WordPress users, there is a plugin available to make the task easier, but for other CMSs, it becomes a more complex and laborious task. At Eucalypt, our site uses ExpressionEngine, and when I developed the current version of the site, was able to build an image attribution process that works for all of the use cases described in this article, but even then, it is limited to the primary image for each blog post.
As a company, we stick to CC licenses that are approved for commercial use, even though it would probably be easy to argue that in the case of editorial use on a blog, our use would be non-commercial in nature.
Using Creative Commons images does expose the end-user to the same potential legal liabilities mentioned with royalty-free images from free sites. For example, there have been cases where copyrighted images have been uploaded to websites under a creative commons license when the uploader did not have the rights to the image, which can create a legal headache for the end-user.
This is by no means meant to discourage the use of Creative Commons, as it is a fantastic tool and at Eucalypt we have both used and contributed to CC image libraries many times over the years–it just means that it is worth taking a bit of extra time to scrutinize an image before using it.
In addition to Creative Commons images, there are many images available in the public domain, meaning that the creators period of copyright has expired, or in the case of some works, such as many produced by US federal employees.
Some institutions, such as the Metropolitan Museum of Art, have gone so far as to put high resolution photos of their amazing collections into the public domain.
This option is only limited by your time, creative ability, skill, and equipment you possess but can be a viable option if exclusivity and budget are of high concern. Modern smartphones possess very capable cameras these days and can certainly deliver high-quality images.
Most publishers are aware of the concept of “Fair Use” under US copyright law–the legal provision that you can use copyrighted works without seeking permission from the owner for certain uses such as criticism or educational purposes.
“Fair Use,” however, is not a blanket license if you feel your use meets the criteria, but rather a defense you would use in court should your use of the material result in legal action. It is worth keeping this in mind when deciding whether or not to use this legal provision when sourcing material for your online content.
Also consider that as you publish more frequently, it is a good idea to keep track of the provenance of your images. At Eucalypt, we utilize spreadsheets for our own website and client projects showing where all of the images used were sourced and links to all applicable licenses. This way, if the usage ever came into question, we can quickly find all of the relevant details.
So while there are more choices than ever now to find images at any budget, it is worth understanding the limitations and potential risk associated with each option. When using free images, take the time to perform a little due diligence to make sure to the best of your abilities that the image is correctly licensed, and when in doubt, avoid it altogether.
Jeff Hawkins has over 20 years of experience as a website developer and marketing consultant, developing websites and managing web content for clients including the National Wildlife Federation, National Fish and Wildlife Foundation, and Theodore Roosevelt Conservation Partnership. A co-founder of Eucalypt, he focuses on business development and technological consulting for clients.
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