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.
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.
“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.