What Photographers Need to Know About Public Domain Images and Stock Photography

What Photographers Need to Know About Public Domain Images and Stock Photography

In 2006, Leah Caldwell was eating at a Chipotle near the University of Denver when a photographer took her picture. When she got up to leave, the photographer asked her to sign a release form for use of the images, but she said no. Eight years later, when Caldwell went into a Chipotle in Orlando, Florida, she saw her picture on one of the restaurant’s walls, and subsequently in two other locations in California.  

A few months ago, Caldwell sued Chipotle for over $2 billion, claiming that the company used her image in promotional material without her consent. And not only that, the company had added bottles into the photo, which Caldwell said, “put a false light upon her character associated with consuming alcoholic beverages.” This story makes it clear just how risky it is for businesses to use images without vetting them carefully first.

The rules around photo usage can be tricky, particularly in the era of Instagram. Today, anyone with a mobile device can take and share photos. This has created an image hungry world where businesses need to integrate ”authentic” images into their website, social media and marketing materials. However, the proliferation of images has also made best practices around image usage more complicated.

Take public domain images. Public domain images are free from copyright, either because they expired or never existed in the first place. Just about anyone can use them for personal and commercial purposes, and a quick browse around the internet makes it clear that interest in public domain images is on the rise. Why? Because free content is always in-demand and fresh images suit modern business needs better than traditional stock photography.

Photo by Andrey Popov.

However, public domain images and stock photography are not the same, and cannot always be used interchangeably. For instance, public domain images do not include all the security factors of a stock photo. Most businesses are aware that they can’t use people’s work without their consent, but they may not be aware of the risks involved in promoting public domain images as stock photos. Just because an image is in the public domain does not mean it’s free from risk of copyright infringement.

Despite these risks, companies are promoting public domain images as if they are stock photography. One big example is Google, which has started to promote public domain content more aggressively in its organic search. By listing public domain images for stock photo searches, it manipulates the subject. Promoting this type of content at a large scale can be toxic for photographers, who don’t receive any income and lose their copyright if their images are in the public domain. It can also be toxic for designers because of the high-risks involved. Anyone who uses public domain images needs to understand the risks.

Public domain images are provided with little warranty. The images are not model-released nor property released, so they must be used with care. Because they do not require a model-release, using these images commercially comes with high risks. The photographer is the one who gives the rights — not the model. This means that the model can sue the designer if the image is used commercially. It’s why a multinational band like Coca Cola is not likely to use public domain images, despite the fact that they might match the look and feel of these ads. They don’t want to get hit with a lawsuit.

Photo By Wavebreakmedia Ltd.

“None of this is to say that businesses should not take advantage of public domain images, but rather to emphasize the importance of understanding the risks,” said Viorel Dudau, one of Dreamstime’s experts in image usage rights. “Public domain images should only be used after conducting due diligence to mitigate the risks.”

There are a number of considerations to be aware of when vetting content. The first is to make sure that the image was really uploaded by the author and not "stolen." Businesses also need to ask questions: Is the site available to everyone? Are the images reviewed? What incentives does a photographer have to provide a great image collection for no fee?

Companies also need to consider the model. Did the person in the image signed a model release? Without one, any commercial usage may be challenged as Caldwell did with Chipotle, and damages can run as high as tens of millions for a single image, even when the model is paid.

Another consideration is whether the image contains trademarked items. It’s obviously a good idea to stay away from using logos of famous brands, but what about trademarks such as Adidas' signature three-stripes on a piece of wardrobe?

Finally, if you are a photographer, be aware that uploading an image under public domain means anyone can do anything with that image, including reselling it. This is what led Getty Images to get hit with a $1 billion lawsuit from photographer Carol Highsmith, who found out that Getty was licensing some of her public domain images and, to make matters worse, sent her a letter demanding payment for using one of her own public domain images on her website. Highsmith claimed gross misuse and false attribution of nearly 19,000 images. The courts ultimately sided against her.

There is no doubt that public domain images can be a great resource, whether it’s to spice up a blog post or create a product label. However, images should never be used without carefully thinking through all the possible variables and understanding the risk. It’s better to vet images upfront than cope with a lawsuit later.

Written by Serban Enache.

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17 Comments

Spy Black's picture

"The courts ultimately sided against her."

Which goes to show how much power large corporations yield over government.

Simon Patterson's picture

Or maybe it goes to show that it's not inherently illegal to sell images that are public domain...

Spy Black's picture

True. There should be some restrictions against that. It defeats the purpose of public domain if a greedy corporation wants you to pay up for a PD image, especially when it's your own.

Simon Patterson's picture

I agree!

Or that the adage about representing yourself and a fool for a client is true. She should have had a real lawyer.

Spy Black's picture

That assumes she represented herself.

It states she represented herself in the linked article.

Spy Black's picture

Two different people.

The court ruled against Highsmith because she released her photos to the public domain, but Magnum should not bill Highsmith for photos that she took.

Leah Caldwell should win her lawsuit with Chipotle. She went in to eat; she refused to sign the model release. Yet Chipotle used her photo without consent for promotional purposes.

Spy Black's picture

Yes, but there should be restrictions on agencies like Getty (or anyone, really) from selling public domain works, because as you've seen, they pretend to have copyright rights to it.

Yes, that is an abuse.

"don’t receive any income and lose their copyright if their images are in the public domain."

If a work is in public domain, the copyright isn't lost, it's expired or surrendered. For works published after 1978, US copyright expires 70 years after death of the creator.
If a photo's copyright expired, the photographer hasn't cared about income in a long time. If the photographer took the step to place the photo in public domain, then they need to realize the ramifications; loss of income is their fault.

For bigger companier, there is hardly any financial gain in using a public domain picture. For large advertising campaigns, the pictures used are probably the cheapest part of the whole thing.

William Howell's picture

No story on exploding batteries by “big name” strobe manufacturer of, some say, over priced under powered mono bloc strobes.

Jonathan Reid's picture

This is such a minefield. You may be an expert on your countries copyright laws, then you visit another country and boom, all of a sudden a completely different set of laws.

Take Germany for example, there is a building in Cologne that overlooks th bridge and Cathedral. They've copyrighted the view, meaning that if you shoot from the viewpoint, you can't sell the image, even if the actual building is not in the picture. What a joke!

The article text "The photographer is the one who gives the rights — not the model." is the wrong way round. The personality rights belong to the model, not the photographer.

It is worth noting that public domain isn't the only source of free content. Wikimedia Commons and Flickr both host a lot of freely license images (often a Creative Commons licence). On Commons, all such licences must permit commercial use and for derivative works to be made, but this is only from a copyright and photographer-rights perspective. On Flickr, some CC licensed material not not allow commercial use or for derivative works to be made. You need to be careful which variant you are using, and to respect the obligations to credit work. This last obligation can make it impossible to use some CC licensed material in a promotional context -- there's nowhere for you to stick "(c) Joe Blogs released under Creative Commons Attribution-Share-Alike 4.0 International licence".

In addition to PD being for copyright-expired work, and photos by the US government, for example, which are automatically PD, there is a Creative Commons CC0 1.0 Universal Public Domain Dedication. This is where the photographer places the image into PD and makes no obligations on the re-user to credit them or even to keep derivative works free.

If you read the "General Disclaimer" on Commons, you should come to much the same conclusion as this article. That you are very much exposed and on-your-own if you use free content whereas with an stock agency they have insurance and a contract that should protect you from any fallout.

If you do use free content in your blogs, etc, please ensure you do credit the artist correctly (and not to credit Commons or Wikipedia or Flickr, none of whom create any content themselves).

I was working in the photo news agency business about 25 years ago and even back then when digital cameras were special and very expensive things that were used mostly by sports photographers, we were saying that once a photo is in cyber space it basically takes on a life of it's own and you can kiss it goodbye.

My feeling is that you have to make money when you take the photo and then if you can get more from resale that's great. He who lives by the sword, dies by it. If you don't want your photos stolen, keep them off the internet. If you want to maintain control you have to guard your photos but that severely limits your opportunities to make sales so you're basically screwed. Get the money up front and live with it.

The law in this area is all over the place and completely at the mercy of the judges. There are no cut and dried cases. Also the people who used to be professionals, like real photo editors and researchers are all gone now replaced my twenty somethings who think everything is free.