An image & a threat of a lawsuit

Jim (not his real name) has a website for his business. One fine day he gets an email. (Could just as well have been a letter in the mail.) It informs him that on his website are images belonging to this person he’s never heard of. Further it states that he has no permission whatsoever to use those images. Which is why he’s going to get sued to the full extent of the law. (And probably then some!)

The email is definitely scary. It does not end with “Have a nice day.”

Jim is confused. And worried. His website was redesigned not that long ago. He trusted his web designer to source images. Could the email be right? Are there actually stolen images on his website?

This is a true story. One that fortunately has a happy (and quick) ending. More about that later.

“It’s okay, the images are just for this one event“

Here’s another true story: 

A nonprofit held a fundraising event. To better visualize their work, they decided to create a set of cards featuring stories of people this nonprofit helped. Each card had a person’s story and a matching portrait. 

To protect client privacy, the stories were all fictionalized (while drawing on real data) and the images were pulled from stock images and private photo collections. The materials were created for this one event, which played into what images were selected. Because time was short.

A while later someone in the organization decided to use these cards again. And again. Several years went by and the stories/photos were still being used, now including online. 

Then someone recognized a person in one photo and questioned whether the images could actually be used this widely. An internal review determined they couldn’t. Oops!

It was now necessary to figure out exactly where each image came from, to see if the proper rights to use them existed.

But how do you do that when images have been edited and renamed? When nobody can remember where they originally came from? And you know there were multiple sources.

The answer was lots of detective work. They had to find which images were stock images that the organization did have rights to use and which images couldn’t be used. Plus then select properly licensed replacement images.

That took a lot of work. But at least the problem was discovered internally and fixed. There was no threat of a lawsuit. And replacement images (legal ones) were found. Just a lot of time lost in the process.

Proving you have rights to use an image

So what do you do to avoid finding yourself in either of these predicaments?

It’s all about making sure that you have proper permission (rights) to use a particular image in the way you want to use it. That needs to happen before you finalize the design.

Then you need to be able to prove that you have the rights, should any questions arise later on. Sometimes much later.

That means we must pay attention to where images come from (image source) and need some reliable means of tracking what images we use, along with their source, even years later.

The image source matters

Photos you or somebody in your business took should be clear to use. Because they were created in the business. Unless of course there’s a person in the image. Like maybe a customer. Then you need a signed release from that person (or in case of minors, their guardian).

Do you want to use photos of yourself or staff done by a professional photographer? Make sure to get permission from the photographer to use the images in the way you wish, including online.

Stock images

Now to photos you didn’t create yourself. Or have created for you. Ones that came from a stock library. Could be free or paid.

First off, let’s be clear: Not all stock images are equally licensed. It’s essential to understand what uses are permitted for any particular stock image. Doubly so when it’s “free” stock images.

Every stock image comes with a license that permits certain uses. For instance, there’s “editorial use only”. Or the image may only be licensed for use on the web, but not in print. Or the other way around.

Ensure that the use you plan is indeed permitted and covered by the image license. Do that before buying the image. Definitely before actually using it in any of your materials.

Far better to learn up front that the ever-so-perfect image won’t work, because the license terms won’t allow the use you have in mind. Certainly don’t want to find out much later through a cease-and-desist notice from some legal firm.

For images with people in them, you also need make sure there’s a proper model release. This is often included in the stock library license. But not always.

I recommend that you not only make certain that you understand the image license, but download a copy of it for your records.

What about free stock images?

There are sites that offer free stock images. Can’t argue with the price. Except again, be absolutely certain you understand the license terms. 

I’ve heard of cases where the license indeed covers use of the photo, but there’s no model release for the people in the photo. Which can create major conundrums, especially if the image is used to promote paid products. 

It’s also been reported that some free stock image sites contain images that are there without the photographer’s permission. Somebody just grabbed the image and uploaded it. Of course you wouldn’t know about that until a scary letter or email shows up.

Sometimes free just isn’t worth it. At the very least, be sure you read and understand the license offered by the download site offers. As always, does the license cover your planned use of the image? Does the license include model releases where needed?

I used images — then time went by

Let’s assume that you did everything right when obtaining images.

That was then. This is now. 6 months later. Or several years later. We forget things. So will you remember where you got a particular image? Can you prove that it was properly licensed for how you’re using it?

If you’re a gambler, you might roll the dice and hope that nobody will ever question any of the images you use. That strategy works — until it doesn’t.

You can of course go back and find the image in question at the stock library you got it from. Except the image may no longer be available there. That happens. Then what?

You may not even remember what stock library the image came from.

Or it may be an image you took or had taken, but you now don’t know where the signed photo release went to.

Let’s face it: It’s not always possible to retrace things and find things again later.

Plus doing all that research eats up time and energy. Always at an inconvenient time.

And just rolling the dice and hoping for a win isn’t a strategy.

An ounce of prevention…

Surely there’s a better way?

Let me suggest 2 options:

The minimum option: Keep the original file of any stock photo. So you always have the original file name (which often includes the name of the library it came from). At least you then know where the image came from. That may be enough to stave off a future challenge to your use of that image.

Better option: 

• Store photo originals (stock and your own), along with notes about the project(s) they’re used in. 
• Name the folders for the stock library or image source. 
• Include a copy of the license for each image. 
• Include the URL of the image from the stock library site. 
• Include any signed model/photo releases here. 

Now you have source documentation. All in one place. Should the need ever arise, it will be easy to check in here and find a particular image.

However you set up this storage, the key is being consistent in adding new images to this repository.

The legal angle and a disclaimer

This information in this article is not in any way to be construed as legal advice or legal opinion. I’m not a lawyer. You should consult with your own lawyer about what licensing you need for the image use(s) you intend and the best way for you to permanently document that you do indeed have the right to use a particular image.

That said, knowing where you got an image from and having a copy of the license under which you acquired it, along with signed model releases where appropriate, will be useful should your rights to use a particular image ever be challenged. And may be enough to settle a challenge right then and there.

Phishing and scammer angles

What about my friend Jim who got that nasty email threatening all sorts of legal action for using stolen images?

Turns out Jim was in luck. His website was redesigned less than a year before. And he and I (his web developer) knew exactly where every image on the website came from and that he had the proper rights to use them.

Plus a little more research showed that this wasn’t even a real legal notice, but a phishing email. They wanted him to click a link to see proof that this other person owned the images. That link would of course have downloaded malware to Jim’s computer…

Sadly, in our ever more connected world, while there’s a flood of images, there are also plenty of scammers hoping to scare unwitting business owners into paying for alleged image rights violations. 

They’re counting on confusion inside the business and on sounding scary. An unwitting business owner without proper image use records, might just be tempted to pay for an infraction that never actually happened. Just to make the threat go away.

Forewarned is forearmed when it comes to image rights

We are all visual creatures. A picture really is worth 1,000 words. Which is why we use images on our websites and in print materials. Because they help us communicate.

But with using images also comes responsibility. To use them correctly, including legally. And to protect ourselves for the future by keeping records of where we got those great images from and that we indeed have permission to use them.

It’s just good practice to first off only use images where we have permission to use them in the particular context and can document that fact.

Then it’s equally good practice to store records for images used, so that source and permission can be verified, even years later. Without massive detective work.

Jim in our story could rest easy, even when he got a threatening email. Because he knew all images on his website were used with proper permissions.

Those folks at the nonprofit on the other hand spent a lot of time stressing to replace images that possibly should never have been used in the first place and certainly not for as long or as widely as they were.

Which camp would you rather be in?