The true cost of free images

A cautionary tale about using images from the web without concern for intellectual property, with names changed to protect the guilty.

Sometime in the mid 2000s I remember opening my mail at work (in those days I still received a lot of physical post) to find a letter from a firm of solicitors acting on behalf of Getty Images. Getty had identified an editorial photo for which they held the rights, I don’t remember of what — possibly a student protest, there had been a few at the time in London — that was being used on the website of one of the university’s departments, without licensing or the payment of Getty’s required usage fee.

It’s fair to say that Getty had a reputation for aggressively enforcing their copyrights, and as the manager of our corporate account it made sense that I was the first person to hear about it.

Getty were using PicScout (they subsequently acquired the company outright in 2011) to search the internet for images from their portfolio, and then checking them against a database of licence agreements. They’d found a photo, used in ignorance by a member of staff (who I’m going to call Colin) who knew nothing about intellectual property and managed a departmental website without oversight or training. Getty’s letter indicated that they sought to recover a very significant sum of money.

Colin’s department was a business unit of the university, and he was a permanent employee, but with a firm resolve to remain independent of ‘central’ management and policy. Except of course when things went wrong, of course.

We reached an agreement with Getty who were pretty understanding when it came to it and keen to continue to work with us. Colin was embarrassed (I think), but unrepentant, and that was about it when it came to consequences. It was an honest mistake and ignorance apparently is a defence, at least it was then and there, and I’m sure Colin went away that we were all just trying to make life more difficult. There was no question that his actions had incurred liability for our employer, but Colin was also left without training in a discipline for which there is generally little help available, and not a great deal of appetite (in higher education at least) for improvement outside of the work of organisations like JISC and digital heroes like Paul Boag.

One thing stayed with me about the experience, and that was Colin’s indignant protest that “images on Google don’t cost anything to download!” and a colleague then pointing out that it seems they CAN cost a lot to download - in this case a sum greater than Colin’s annual salary.

There’s no question that the whole image rights thing is very confusing, and complicated by a lack of clarity, no international consensus, territorial confusion, and frequent legislative change. Getty’s initial approach to us in this case was heavy-handed, although as a big player they’ve often the recipient of criticism for being at the forefront of a ‘permissions culture’ but I understand that protecting their intellectual property is a key part of their business model.

The situation in the UK today: Orphan works

That was a decade ago and things have moved on. Parliament passed the Enterprise and Regulatory Reform Act 2013, which has made a significant change to the way that ownership of imagery functions in practice in the UK. Basically if you are unable to identify the copyright holder of a photo, illustration, audio or video item, and have conducted due diligence to attempt to do so (what the act calls a “diligent search”) then it can be considered to be an orphan work. In the US there’s no such legislation at present, although there was an attempt to relax things for orphan works in 2006 and again in 2008, but following the recent UK precedent I wouldn’t be surprised if this area was revisited in the near future.

The Act creates a more practical culture for the use of imagery on the web, but the owners of intellectual property will be reluctant to give up some of the protection currently afforded to them by law and accept this shift in the burden for diligence.

I know quite a few professional photographers, and it’s great that there are mechanisms in place to recognise their work and ensure they get paid for what they do, but there are also many strong counter arguments as to why the system as it stands is unworkable and unrealistic.

There are no easy solutions. Owners of creative works often want reward and credit while there are many users who don’t care or are hostile to the very idea that digital works can be owned, and this is all set against a backdrop of the ease of digital duplication.

Creative Commons

The wonderful Creative Commons licensing structure is an attempt to provide some clarity to the situation and to communicate rights in an easy-to-understand way, using visual symbols and clear language, to show what rights are reserved and which are given. It isn’t perfect but I firmly believe that this initiative is currently our best hope for clarity and creating a culture of mutual respect when it comes to intellectual property, setting aside the continuing difficulties of ensuring that this information remains with the digital image, or its copies and surrogates. The loss of metadata often leads to the photographer’s frustration with an image being described as an orphan work, especially on social platforms like Facebook where derivative versions are published without embedded IPTC or EXIF fields.

In the meantime we all have to get on with creating and using content, but it pays to be careful. Information might want to be free, but in the case of images this freedom comes with responsibilities. Google (specifically Google Search for the pedantic) is a search engine, not a repository, picture library, or licensing service.

Five steps to safer image use

  1. Make sure you know who created, or owns, the image you want to use.
  2. Search for images in places where the terms of use are clear — the Wikimedia Commons for example, or the 200 million plus images on Flickr offered under Creative Commons licences.
  3. Understand the terms under which the creator (or rights-holder if it isn’t the creator) allows, or doesn’t allow, you to use their work.
  4. If you need a specific rights-managed image or something for which a royalty is requested — meet any financial obligations requested by the creator before use.
  5. Get a written license agreement if you can, or know where you can find it. Keep receipts.

Further reading

About the author

I specialise in navigating the challenges faced by complex institutions in this digital age, driven by a restless desire to see them wield technology to achieve their true potential.

Formerly the Chief Digital Officer at one of the world’s leading business schools, I have over a decade of experience in high profile roles at the University of Cambridge and King’s College London. With a background spanning digital strategy, corporate communications, and the management of technology projects, I now consult widely across a range of sectors.

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