Download this whitepaper now and get a new one every month!
We love digital
Call 0845 485 1219
We love digital - Call and say hello - Mon - Fri, 9am - 5pm
by Mike Essex on 26th February 2014
Last month I looked at why we deleted 900 blog posts and how that helped us. The key message we discovered was that old content can work against you and that a spring clean is never a bad thing. In that post I identified the ways in which old content could be affecting user experience and today I’m going to look at how your archives could cost you a lot of money.
There are many issues to tackle, but for today we’re just going to look at the minefield that is online image use. This doesn’t constitute actual legal advice so we’d always recommend you consult a lawyer if unsure, it’s merely a guide to help you avoid some of the potential pitfalls.
I think it’s safe to say that everyone who blogs has at one time or another performed a Google image search and used an image on a blog post. Whilst you probably all know not to do that now (for so many reasons), can you be 100% sure that your entire blog post archive, across every one of your authors, doesn’t have a single photo like that?
Also if you’ve ever had a guest author post for you and they provided photos, are you sure that they owned the photos or did they just perform a Google search? It’s probably something worth checking even retroactively for your own posts and those of others. After all it’s never been easier for people to do a reverse image search and find where their photos have been used.
If you need an example of just why not to do this, one agency got sued $8,000 for using an image on a blog post that got less than 100 visitors. They called it their “most costly mistake since starting the business”. Likewise this agency got sued $4,000 for an image that would have originally cost $10. All in all this is the most obvious issue but not the only one.
The safest way to get blog post images is to do a search for images that are marked as Creative Commons licensed. You can find these via CC Search and on sites like Flickr which have a licence that looks like this:
It’s a fantastic idea, but comes with its own pitfalls. For example, one company was republishing newspaper content under a CC licence for others to use. However they didn’t have a licence from the original creators of the content to do that so got sued. It’s also rather shaky ground for those who took the content from them.
Even more shockingly Persephone Magazine used an image with a Creative Commons licence and were later sued for $1,500 for using it. It turned out the photo did not belong to the person who uploaded it with a CC licence, which led to 73 companies being sued who used it, despite the fact they had the best of intentions. As for Persephone Magazine $1,500 was more than their entire ad revenue for the year and they had to ask their users to donate just to keep the site going.
Things like this always make me wary of using CC images, despite the obvious advantages it has. The best thing I can recommend is to always do a reverse image lookup for any CC image you want to use. If it pops up on a stock photo site then stay well away.
If you’ve purchased a stock photo it may seem like you’ve done all you can to keep the photo lawyers away. After all you’ve paid for the image so now you can do what you want with it right? Well not exactly. One of the biggest traps people fall into is not crediting the photo. Yep, even if you pay you have to credit the photo, here’s how that looks on BigStock:
“You shall provide a link back to www.Bigstock.com (where applicable) -OR- provide a credit to the Bigstock contributor and to Bigstock in connection with the editorial use of any Image.”
You’ll find similar terms on iStock Photo, Fotolia and more. So if you buy a photo you will need a line on the content somewhere to explain where you got it from. In fact I’d suggest you read all of the terms of any stock photo site you use. I did it for BigStock and it took a long time but had I not done it I’d be spending more days going back crediting photos later on.
Another term to bear in mind is that Stock Photos are usually for a limited use, so if you’ve used one image on fifty blog posts that may not be allowed under the terms. If this is the case then you’ll need to keep an internal log of how often you’ve used an image. There’s also limits on the number of sites you can use an image on so any guest post authors providing you with images must also bear this in mind.
As a side note if you use an image on printed material most stock photo sites will have a limit to the number of times it can be printed. For example BigStock limit you to a print run of 250,000 copies for a single image when used in printed materials such as magazines.
One of the first rules for having user generated content is that you should always have terms that state users are responsible for what they upload. Sadly lawyers may be more likely to jump on and blame the hosting site rather than the original author. GoodReads faced one of the biggest copyright cases ever over this, when they were sued $150,000 for an image someone uploaded of a boy band member. Considering this photo was on a group about the band (so was free PR for the band) it seemed really strange that a lawsuit happened.
Thankfully the DMCA does offer a degree of protection for 3rd party content so if you do allow content from others then it’s worth reading up on it. In the above case it’s likely GoodReads would be fine based on the DMCA.
I believe one of the biggest risks for the future is that the big studios are going to fight a lot harder against uses of their characters and properties that are not approved. There are already countless laws being prepped to help them do this and I feel it’s only a matter of time before we start to see big cases in this area.
For example this infographic on “The Cost Of Being Batman” uses characters from DC Comics and the Warner Brothers movie. If Money Supermarket got permission to do this then there is no issue, however if they didn’t the fact they have credited the images won’t be enough to prevent the risk of any action.
Whilst you could argue that people doing this also provide exposure for the property in question you only have to look at the recent overload of Anchorman 2 tie-ins to see that actually studios are already trying to do their own tie-ins. Why wouldn’t they want to crush unauthorised usage?
Memes must be one of the biggest grey areas of image usage there is. Parody is typically covered as being acceptable but only if the new work is far removed from the original (see the Naked Gun advert in this example. Memes however aren’t really doing that, they are very similar to the original work, often with text added on top being the only change.
Memes certainly can’t be used for commercial-use without permission (as illustrated here). If you don’t have permission from the person who created the original image then you shouldn’t use it, no matter how wide-spread the image is online. In truth memes are no less risky that jumping on Google images and picking the first image you see.
Scared? Well sadly you should be. Even a single photo from your archive could end up costing you anywhere between $1,000 and $10,000. Roni Loren found this out the hard way when she had to change the images on 700 blog posts to protect herself after she was sued for a photo. She found it really doesn’t matter what excuses you have, if you use someone else’s photo without permission, no matter how you found it or credited it you are at risk.
So if you have doubts then there are two options:
1) Identify and Update: Go back through all of your blog posts. Are all the images credited? Follow those credits and see if they are purchased from a stock photo site or have a CC licence and are not from other sites too . If you can’t find the source on the post then it’s often safer to buy a new image. Then once you add the new image be sure to credit it so in the future you’ll know.
2) Do nothing: Of course you could always do nothing. If it will cost you tens or hundreds of thousands of pounds to go through and check then it may work out that a few lawsuits will actually be cheaper than changing anything. You’ll be able to sleep sounder with option one and personally I’d always recommend fixing things, but it’s your call.
Sadly even sites with the best of intentions can get caught out (as with the CC lawsuit) so there’s no complete solution but hopefully this blog post has helped save a few people from a nasty surprise in their inbox.
If you have any stories about this topic or just think it’s a real mess of a problem then please leave a comment below.