Images and the Internet (Part 2 of 3)

Source of an Image – how do you know?

In Part 1 of a series of Blog posts related to Images and the Internet, I discussed the need for parties to increase their level of diligence and awareness when it comes to understanding the source of an image prior to using the image.  Or from the legal standpoint, making sure to verify who the copyright or exclusive rights owner is, and to the converse, if you can’t verify, then don’t use.  Ultimately, unless you are the actual image taker, a witness standing there, or you were the subject matter of the image, you can never know with full certainty the true ‘source’ of an image.

From this standpoint if there was one critical point I would want to convey in this post is that sites like ‘Google’, ‘Bing’, and so forth are not legitimate sources of images.  Nor at any point do they ever claim to be.  And to their credit, when it comes displaying image search results, these websites include warnings as to the fact that an image may be (and in reality, is) subject to copyright protection.

In representing copyright holders, far and away the most common excuse/reason I encounter for unauthorized use of an image is something to the effect of [paraphrasing], “I got the image from a ‘free’ website”.  Ugh.  So besides a search engine, where else can one find a “free” image?  In my experience, when it comes to an unauthorized use of an image, the next scapegoat in line it is most likely a “wallpaper” website of some kind.  Wallpaper photo sites are without a doubt a great hindrance to the internet at large.

An assessment of what a “wallpaper” site is will follow soon in Part 3, but for the purpose of this discussion here, I note that most “wallpaper” websites I encounter fall into one of two categories.  First, the site is illegitimate or malicious (which may or may not be apparent to a layman visitor), and exists to submit viewers and users to advertisements and/or malware that accompanies image downloads.  In other words, the site has in some unauthorized fashion posted photos that now act as a draw to an unsuspecting end-user who, upon copying or downloading an image, has just subjected his or herself to whatever intrusion is intended from the site.

The second form of “wallpaper” site is one that may or may not be illegitimate, but at least does contain express terms that indicate any images on said site may be subject to other parties’ copyright and/or may only be used for a personal computer desktop image.  In some respect, there is perhaps a modicum of fair use or freedom of speech aspect at work here that makes this type of site difficult for rights holders to deal with.

And unfortunately this is also where the human psyche comes into play – we want to convince ourselves of what we want to hear: that this image site says “free”, and so I am going to use it for free without anymore consideration as to whatever else the site might be telling me or what the terms of use might be.  Alas, in the case of image “wallpaper”, ‘free’ is never what it seems.  Unfortunately by the time an image is copied or downloaded from one of these websites, the small print is an afterthought.

Beyond “free” sites are the “pay for use” stock photo sites.  While Getty and iStock may be among the more well-known stock photo sites, there are numerous others.  But even with these ostensibly legitimate sites, how do you know the site is a legitimate source of the image?   The short answer: as already stated – you can’t.  However, in contrast to rogue “wallpaper” sites, most legitimate stock photo sites will provide some measure of remedy in the form of a guarantee or indemnification, typically for pre-identified amounts.  This makes it paramount to read and understand the fine print of any site from which an image is used.

So just what does this indemnification mean?  In short, and in general, if you take a legitimate license from PhotoCompany X for the use of an image(s), Company X will cover or reimburse applicable costs, fees, expenses, etc. (up to the pre-identified amount) should a third party come along and raise a legal issue related to the use of the image(s).  For users of images, this is a cost of doing business… use a “free” site, and assume any and all risk.  Or use a “legitimate” site, and recognize you have mitigated your risk by presumably paying some kind of image-use licensing premium.

Matter of fact, at the very same time of writing this article I had an inquiry as to the site 123rf, which is a perfect example of how you assume risk when it comes to images and the internet.  At the outset, and based upon impression, strikes me as a legitimate site – they advertise a 29 million+ image repository, and appear to have been around since at least 2005.  So using an image from 123rf is a no-brainer, right? WRONG.   This is the perfect example of how taking the time to read the legalese (or terms of use, etc.) is critical.  First, it is clear the site offers a number of distinctively different licenses, each having different terms of us.  But while the “standard license” provides a measure of protection to licensees[1], the “free license” does nothing of the sort[2] - the former being a guarantee (albeit capped at $25,000 in liability), the latter being a ‘use at your own risk’.

So even the use of a purported legitimate image site carries risk.

Another scenario arises when a person or company hires an outside party, such as a web designer, to create an internet presence that includes use of images.  Essentially the person or company will enter an agency relationship of some kind that gives the web designer a degree of ability or authority to obtain imagery on behalf of the person or company.  The impeccably prudent business person understands there is an inherent assumption of risk of some degree related to acts of parties they employ or contract for hire, for which the risk may be mitigated, but never completely eliminated.

Sadly too often I encounter a business who fails to understand this professional and legal responsibility, and the same pattern unfolds, including one or more of the following:  Company hired Web Designer to create a website, but… Company never bothered to mitigate risk related to Web Designer acts in a contract; Company assumed Web Designer would not mess up or would be accountable if it did; Company never bothered to check Web Designer reputation; Company never bothered to ensure Web Designer verified the source of any images used; Company never bothered to ensure Web Designer had legitimate licenses for any images used; and so on.

Web Designers are no different than any other savvy business person when it comes to wanting to cut costs and increase profit.  One area ripe for the picking, and likely unbeknownst to the customer, is images – go get a “free” image from a wallpaper site; charge a customer $X for creation of site (that includes a nice margin for using free images).  This pattern is very prevalent in the world of today as more web work is outsourced outside the U.S., where using “free” sites for image source is routine.

The Gist
Verify the source of an image, or don't use the image.  If you (or someone on your behalf) use the image, you assume the risk.  "Free" is not free in the world of the internet.

[1] [for Standard License] “123RF promises that the use of unaltered Content in accordance with the terms and conditions of this Agreement is backed by 123RF’s US$25,000 Liability Cap”
[2] [for Free License] “123RF represents to the best of its knowledge that it owns all rights or has all requisite authority, including all copyrights, in and to the Content, or, is authorized to allow You to access, acquire, and use Content under the Terms and Conditions of this Agreement”