Finding Your Images “Out There”

A lot of stock photo contributors are interested in finding their work “out there” being used.  For quite a while now, it’s been easy to use a website called TinEye to try and find a certain image being used on the internet.  In fact, back a while, I wrote about how buyers could use TinEye to brainstorm in their work process.  TinEye is kind of like a google search, but for images.  Well, yesterday, Google revealed their new product which is actually a Google search, but for images.  And it’s easy to use (and addicting).

iStock Editorial Goes Live

The new iStockphoto “Editorial Use Only” collection has gone live with 7,000 images:

Just a few weeks ago, iStockphoto started accepting images for a new Editorial Use Only license. We have accepted thousands of these images in a very short time and we’re happy to announce that they are now available for download.

IS Buyers: See If You’ve Already Licensed Content

A buyer recently posted on the iStockphoto forums was having trouble tracking what content he had already licensed and asked this:

… couldn’t iStockPhoto create a system to help your customers know when we have already purchased a specific item #? When I first started using your site, I assumed, like other vendors I purchase from, that when I click on “BUY” or “PURCHASE” for a particular photo that it would pop up and say “OOPS- YOU HAVE ALREADY PURCHASED THIS IMAGE”, so that I would know to go back to my iStockPhoto files and pull the image from my previously purchased file.

Readers of this blog know that I’ve been having some fun writing some Greasemonkey (a Firefox add-on) scripts.  Well, I’ve got good news for this buyer, and anyone else that wants help keeping track of whether they’ve licensed a piece of content.  It does involve Greasemonkey, so start by reading the beginning of this post.  Then install the Greasemonkey add on for Firefox if you haven’t already, here.

iStock Helps to Make Your (Power) Point

This just appeared on the radar tonight.  As I was moving about iStockphoto.com earlier, I noticed a new icon on the front page of the site, touting, of all things, FREE Microsoft Office Plug-ins.

E+ kind of, partly, active … sort of

A week and a half ago, I detailed the new “Exclusive +” pricing level/collection at iStockphoto.com .  To review, it allows a “Getty Family Exclusive” contributor to set a certain number of their images at a slightly higher pricing level for whatever reason they deem necessary.  However, gremlins have struck!

A Note to Buyers

Last week, you may have received a “Contact Sheet” newsletter from iStockphoto touting a new subscription based  “microstock” site within the “Getty Family” of content providers.  It mentions things like “powered by … selected photos … from the best quality images sites … istockphoto”.  Buyers may find themselves under the assumption that the entire iStockphoto collection is available at this new offering.

iStockphoto to Warranty all Content

In various forum posts around the net, people have posted that their company will not buy content from iStockphoto.com because they do not offer a warranty against legal action, like some of the larger stock houses.  Times, they are a changin’.

Today, iStockphoto.com has announced the “iStock Legal Guarantee”.  From the forum post:

Beginning Wednesday, iStockphoto promises that files purchased and used in accordance with the iStock license, will not breach any trademark, copyright or other intellectual property rights or rights of privacy. We’re calling it the iStock Legal Guarantee and if a customer does get a claim, iStock will cover the customer’s legal costs and direct damages to a combined total of $10,000. Here’s the best part: it’s on us. Starting Wednesday, every iStockphoto file automatically comes with a free Legal Guarantee.

This is truly a first for the big names in micro.  A smaller company was offering such a warranty, but I don’t believe they made it out of Beta.

Amazingly, this announcement come of the heels of my blog posting yesterday “Keep an Eye on your Content Sources“.  Now, you can feel perfectly safe, and legally covered (up to $10,000) when sourcing iStockphoto.com for your content.

In addition, there is an extended licensing option for more legal protection, up to $250,000, available for 100 credits.  I haven’t yet determined why you might purchase this option.  Maybe, for a huge national campaign with lots of visibility.  Anyways, the option is there.

Why shop for image, video, audio or flash content anywhere else?

Keep an Eye on your Content Sources

There was an article in the LA Times yesterday on “Controlling Illegal use of Copyrighted Material on the Web“.  The article is basically about the penalty cost that Getty Images will fine someone if they discover that someone using unlicensed copyrighted Getty material on their website.  It doesn’t really contain any new information – Getty has been doing this for 3-4 years now.

Basically, Getty uses an online service called PicScout to scan the web for images that match the content in its vaults.  When it finds a match, somehow, it compares the site owner/registrar to it’s history of licenses sold for that content.  If it doesn’t find the image was legally licensed, it sends its legal dogs out to fine the owner and get the work removed.

Too Much?

The question the article brings up is “Are the fines too excessive for the crime?”.   The point of a fine or punishment is not only to dissuade the person receiving it from committing the act again, but to also scare off others from doing the same, out of fear they will be caught as well.  I think you can see this in the RIAA lawsuits that occurred over music sharing.  The general outcome that I see is that normal people who might have thought music sharing was ok, got really freaked out about being fined hundreds of thousands of dollars and turned to legal sources, like iTunes, which is selling 25% of the music in the USA.  Of course, there will always be people who will do their best to step around the rules, but your everyday, average Joe MusicGuy probably will turn to iTunes or some other legal source, for their music needs.  I know I do.

Now, it certainly wouldn’t have made sense just to fine illegal music users the cost of the song on iTunes.  You might as well just continue to keep downloading on the off chance that someday, you might have to pony up a few cents for the downloads you did.  The cost of the risk taken (morality aside) would seem to justify continued downloading.  ie., low risk and a low cost if caught = keep on doing it.  However, through the media reports, we saw that a large number of people were actually tracked down, and the fines were very high: high risk + high cost = STOP NOW!

How Much?

Looking at that scenario, for one thing, it wouldn’t make sense for Getty to just fine people the actual cost of the license.   It would be like catching a shoplifter.  “We caught you, but just pay for the item and we’ll let you go.”  The person would just try again next time.   There needs to be a punishment factor.   The second thing coming into play is that there is a real cost to protecting the rights of the Getty submitters.  PicScout certainly isn’t free:

If you’re goal is to monetize the images found (either by licensing or unauthorized use claims), we charge based on a percentage of the recovered revenues.

So, Getty has some negotiated cost with PicScout they need to meet to use the service.  Then, you have Getty’s law team that goes into action once the infringement is found.  We all know lawyers aren’t cheap.  So, there is a per image cost to pursuing an infringement claim.  We just don’t know how much it is.  There is the notion in the article that it is based on the licensing cost of the image for the found use:

“When we’re made aware of an infringement, we seek an amount that’s in line with the cost of licensing the image,” said Claire Keeley, senior corporate counsel for Corbis. In many cases, she said, that can mean damages of as much as 10 times the original licensing cost. In other words, a photo that costs $50 to license could result in damages of $500 if the copyright is violated.

Assuming Getty has the same thought process, the problem here (for Getty, not for the user), is that Getty prices for web usage/size, at least, have dropped noticeably in the past few years, to the point now, where a blog sized image can be licensed for $5.  Obviously, a multiple of $5 fine is not going to pay any of the overhead bills for the action, so there must be some minimum to cover costs, as well as to scare off future offenders.   Despite the image fees dropping, the fines seem to have stayed stable at $1000 or so per infraction since the start of the program.  So, it would seem that around a thousand dollars is the place Getty wants to be.  They must walk the line between recovering costs for protecting their artists, dissuading others from infracting and not annoying people so much that they lose too much market share from people vowing to stay away from Getty Images for all eternity.

Whose Fault?

The article brings up the question of where the fault lies for these infringing uses.  Does it fall to the web designer who procured the imagery/content, or to the end buyer of the site design, who commissioned and approved of the site?  I would say that this depends, of course, on the contract between the two, and things like indemnification clauses and work for hire and such.  What I think that we can take out of this, though is that the choice of a designer goes back, again, to a cost/risk analysis.  Do you hire the college student or neighbor with no references or knowledge of copyright for a low price, or do you pay more for someone or a company with a history of web design knowledge and experience?

From a survey conducted last year:

A recent study of more than 1,000 people conducted by KRC Research and iStockphoto, the world’s royalty-free multimedia sales leader, revealed that 33 percent of Americans are using downloaded digital content, but nearly 30 percent are unaware that permission may be required for its use. This lack of awareness spikes to 38 percent among Americans in both the 18-24 and 65 and older age groups.

This is not to say that these more expensive companies are immune from mistakes, but when finishing a project, hopefully a buyer has negotiated or included the right to take a look at the designer’s receipts for image/content licensing to best insure legality.

End Thoughts

Of course, at this point, I’m going to say that those commissioning designers should insist on those designers using a reputable image/content site as their purchase source, and should also require receipts or other proof for said licensing.  Avoiding free sites, or public domain image sources, where there is no oversight to the content available, is just common sense.  There are loads of people, mostly in Asia/Eastern Europe, who delight in procuring large numbers of stock images from various sites and putting them up for free downloads.  Some sites, such as Flickr, may even strip internal image information, making it difficult to determine image source, even if the image is offered with a proper license.   These free sources of content may be extremely attractive to designers looking to cut costs, but they may not be the best solution to the person commissioning the designer.  You must be vigilant in checking the source of the content you are responsible for.

Toward that end, I will, of course , suggest using iStockphoto.com as a source for content.  Regular buyers are able to view and screenshot a list of licensed content.  A record of a purchase, even for a prior project of the designer, ensures proper licensing, since, with iStock’s Royalty Free licensing, the designer can use the content in perpetuity (forever).  Even better, a corporate account user can:

Get full reporting on financial activity within your network. Keep track of who downloads what for each project. Stay organized with customizable reporting tools that output to a CSV file.

By the way, here’s a good iStock article on incorrect content usage: http://www.istockphoto.com/article_view.php?ID=616 .

Here’s to staying out of trouble!

Extended License Advice from iStockphoto

Previously, I’ve posted examples from the forums about whether or not a buyer would need to purchase an Extended License on iStockphoto for their licensed content.  Here‘s one article and here‘s another.

Well, in case you missed it, iStockphoto.com has put together their own page to try and give some examples that would help you when deciding to purchase an extended license.

You can find the page on extended license examples here, and it also lists some license prohibitions, which is a nice touch.

More “Which License Do I Need” ?

This posting is sort of a follow up to my article “Do I need an extended license?“.  I’ve seen some recent queries in the iStockphoto.com forums, and I’m going to review them here, and post some more when they come up.  I’m going to post my rationale behind the answers, which, from experience, seems to be pretty in line with the iStock support thinking.

E-Cards for a Client

I’m doing some e-cards for a web-based company. Do I need the extended license for istock files on this work?

The regular license clearly states you may use content for “advertising and promotional projects”.  What the original poster above terms “e-card” could probably be thought of as just a  “promotional email design”.  In this sense, the use falls within regular usage.  iStock is very clear on “e-cards” in the license as being prohibited, and they are referring to a website or such where  users send ‘greeting-type’ cards from the web based company’s site.

VERDICT: Regular License

Jewelry Design

I design and sell jewellery (pendants in particular) and use patterned paper, wrapping paper etc as the design features on the pendants. I’ve noticed that some of my competition use some istockphoto images in the same way. I wanted to ask whether this was actually allowed under the standard license? Can I use files on istockphoto for this purpose?

The regular license states you may not “use the Content in any … items for resale, license or other distribution for profit” (without an Extended License).  To clarify this point a bit more, in the section about permitted uses, it says:

For clarity, you may not use the Content in products for resale … unless … the original Content has been fundamentally modified or transformed … and where the primary value of such transformed or derivative work is not recognizable as the Content

While there is certainly value in the jewelry design and construction, it can be said that merely putting the content on the jewelry does not modify or transform it enough, and it also adds significant value.  Much like a calendar that showcases the content.  Also, as you can read in this linked thread, the official word from support is:

You may also create these unique pieces for personal use, however, if you wish to resell the final product then each image which you have installed within the design must have been purchased with an Items for Resale – limited run of 2 000 pieces of artwork Extended License.”

VERDICT: Extended License – Items for Resale

Icons in a Software Application

Does the license agreement for iStockphoto purchases allow me to embed an icon created from a purchased image inside an iPhone application that is sold on the Apple App Store?

So, we have a designed application, that someone wishes to sell.  Does using iStock content (icons) in this case require an Extended License for “Electronic Items for Resale”?  The answer is no.  The regular license states:

You may also purchase the option to resell the Content in an unlimited number of electronic templates for e-greeting or similar cards, electronic templates for web or applications development, PowerPoint or Keynote templates, screensavers, and email or brochure templates.

This, however, does not apply here.  The poster is not creating a template for applications development.  He is actually creating an application.  Two different things.  In addition, the icons are not the primary content in the application, like you might find in a screensaver application.  Removing the content from this application would not greatly affect the value of the application.  And iStockphoto legal agrees:

…the consensus was that it would be ok provided it’s not a main selling feature

VERDICT: Regular License

Campus Cookbook

We are creating a campus cookbook that is going to be available to faculty and staff. However, we are considering selling it in our campus bookstore at cost (it will not make a profit). We would just like a way for our students to have access to the cookbook. Will I need an extended license for any images I may use in the cookbook?

The poster mentions “it will not make a profit”.  That is not a determining factor in whether an extended license is needed.  What is important, is that the regular license clearly allows books (in general): “entertainment applications, such as books and book covers”.

It also prohibits using the content in “items for resale, license or other distribution for profit”, though.  Here, one can infer that the statement is discussing items for resale where the primary value is derived from the content.  For example, a book consisting of only full page iStock photos derives its value from the content and would probably not fall under the regular license, while a cookbook’s value comes primarily from its recipes and text.

VERDICT: Regular License