Image Usage for Visual Marketing: Avoiding Copyright Fines
If you purchase stock photography (or use legally-procured free stock photography) to enhance your website, blog, and social media or other content marketing efforts, you’re not alone. As the importance of visual marketing grows, more and more small businesses are creating memes, branded graphics, infographics and other visual marketing assets.
Needless to say, there’s a lot of stock photography being purchased to accommodate this visual marketing trend. And a lot of — often inadvertent — copyright infringement going on too.
I ran across this meme on Facebook the other day and my first thought was “uh-oh.”
How is it possible that the proprietary owners of Lipton Tea and Kermit The Frog are going to be okay with this?
Which led me to do some additional research regarding fair usage and copyrights relative to memes. Turns out, (with caveats), that movie stills and short movie or news clips, used in humorous ways, are generally considered fair use in the US. However…
If image usage for visual marketing is part of your strategy, be sure to pay attention to licensing, copyrights, and fair usage rights for the images you use.
I must admit, I hesitated when deciding whether or not to write this blog. Did I really want to risk drawing attention to whatever image I was going to associate with this article? Quick double-check: do I still have the image purchase receipt and license? ✓ Check. Okay, well then, nothing to be worried about, right?
Hmmm.
The truth is, unless you’ve been previously slapped with a “Getty Letter” or are yourself an intellectual property attorney, chances are that there’s a nuance or two in that license you got that could trip you up. Assuming you even read it, of course.
Here’s an example of an important restriction in Getty Images’ Royalty-Free Image and Film License Agreement you probably didn’t read:
3.2 Licensee may not sublicense, sell, assign, convey or transfer this Agreement or any of its rights under this Agreement but Licensee may sell or license derivative works incorporating the Licensed Material. However, Licensee may not include the Licensed Material in an electronic template intended to be Reproduced by third parties on electronic or printed products.
Totally clear, right?
Okay, so most likely you haven’t created a template (using a Getty Image) that you’re licensing and allowing third parties to reproduce. Still, were you aware of that restriction?
For most small business image uses, simply licensing a stock photo will be enough to ensure you’re not infringing on any copyrights. If you’re branching out beyond just associating that image with a web page, blog article, or social media promotions, here’s some cautionary advice regarding common “uh-oh’s” we’ve seen:
Image usage for visual marketing:
- Creating or re-sharing memes using commonly found images is “generally” considered okay without procuring usage licensing. However, ONLY if you do not use for commercial purposes — so don’t add your own logo/branding — and even then, there are a host of other caveats to be careful about.
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Posting an Internet Meme? You May Receive a Getty Letter [ArtLaw Journal]
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Copyright, Memes and the Perils of Viral Content [Plagiarism Today]
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- Just because you find an image in a Google search does NOT mean it’s free to use. Yes, even if you used the word “free” in your search. You must either purchase the rights to an image, find it offered for free and download from a vetted stock warehouse, or find the original photographer/owner and obtain written permission to use their image.
- Give credit where credit is due. Even if you legally procure use of an image for free, most image owners and stock warehouses require that you include author/owner credit when using free images — with links. Each typically provide the exact credit information and links to use, so be sure to copy that info to accompany your photo usage when you make your purchase. For example, notice the above Lord Of The Rings meme attribution. (Although as stated earlier, meme’s are typically “free use” and don’t require attribution, better safe than sorry!)
- Advertising is not protected by fair use. If you’re intending to sell or promote a product/service offering, the best advice is to simply stay clear of any “free” or “fair use” images.
- Public figures and celebrities are not always fair game. Even if you can claim “fair use” for memes or similar viral content, “…if the meme shows a person, such as an individual (e.g., from an old yearbook) or a celebrity, the meme could violate the person’s right of publicity or right of privacy. The right of publicity allows celebrities to control commercial uses of their images, and the right of privacy likewise prevents use of a person’s likeness for commercial purposes.” [Inside Counsel]
The upshot — be cautious.
Want to avoid navigating all the nuances and legalities regarding image usage for visual marketing? Take your own photos or hire a professional photographer so that you own them yourself. Or hire a graphic designer to create original visual assets for your brand. Then you can use your images freely for whatever purposes you’d like.
Art is Art is Art? – Copyrighting the Internet
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