Tel: 905–690–4709 dk@tfwm.com - Darryl Kirkland, Publisher

Understanding Royalty-Free Graphic Usage

The purpose of this article is to clear up some misconceptions and myths regarding the use of stock images, and to help you use Royalty-Free (RF) stock images guilt and worry free.

The Dawn of Royalty-Free
As long as photographers and cinematographers have been busy behind their cameras, imagery has been for sale in one form or another. The first stock business model that came on the scene (and is still being used today) is called “Rights Managed” (RM) or “Rights Protected”. This model licenses images based on “use” and is fairly limiting. Originally, photographers would shoot for a certain project that would have a limited use and that understanding was carried on to the stock model as well. Stock agencies collected libraries of images and offered research to their clients, compiling a selection of photos and delivering them as transparencies. It was understood that these photos would be used for a limited time for a certain fee. The fees were high and were based on the type of use, as well as the scope of the audience that would be targeted. Typically, printers, publishing companies, graphic designers and ad agencies were the customer base that used this service, and it was a fairly small group.

The Rights Managed model worked well until desktop publishing technology revolutionized the print world in the mid to late 1980’s. All of a sudden, anyone could purchase a Mac with a Laser printer for around $5,000 and design/print their own flyers, brochures and catalogs. Despite the slightly lower 300dpi laser print quality, the older $100K typesetters became obsolete in a matter of a few years. This new group of Mac owners (and eventually Windows owners) quickly grew in numbers much higher than the traditional RM clients. They wanted stock imagery but had no understanding of how the RM business model worked, nor were they interested in purchasing limited use licenses with fees that exceeded their smaller budgets.

Obviously, a less expensive, simplified approach was called for. Soon the opportunities presented by desktop technology were filled by Royalty-Free (RF) clip-art libraries. Unlike RM, this new business model allowed for unlimited use of the images without further costs. The original libraries were CDs containing line-art style images, priced at around $100 per disk. In the early 1990’s as the desktop technology improved to make high-resolution color images feasible, RF photo libraries appeared on the scene. As computer speed and capacity increased to handle video, early RF footage libraries became available in 1996. As the RF industry grew, the RM stock houses continued to adjust, holding on to their higher end clients. Many of them incorporated an RF division as well.

What is the disadvantage of using Royalty-Free?
RF seems like the perfect fit for Churches, small graphics departments, freelancers, etc., because of the low costs and broad licensing. And for the most part this is true. But what are the disadvantages?

1. Quality can be questionable. The Internet is starting to clog up with small stock houses that are producing low quality animations, or shooting material on inexpensive cameras, with poor lighting and poor directing. We are starting to see packages of thousands of clips for $499 which is basically shovelware. It can be a daunting task to find quality imagery when sifting through dozens of Web sites. It is best to stick with larger brands that have solid reputations.

2. No exclusivity. RF imagery may work for your local church ad, but imagine viewing a Citibank ad or a local car lot ad that is using the same footage. Ads with a large audience or national exposure may need exclusive Rights Managed footage or custom shot footage.

3. Missing Categories. Historical, archival, celebrity, science and technology subjects have long been staples of traditional Rights Managed libraries, but are almost non-existent in RF libraries. Rights Managed stock houses have a thousand times more footage than RF libraries do, so there is more to choose from due to the shear volume.

4. Research will be up to you. Rights Managed stock houses offer research to help you find the photo/clip you are looking for. Typically RF companies are small and so have little or no help with research. Some sites have good keyword search capability, but still, you will be the one pouring over all the images.

5. May not be talent cleared. Have all the actors signed talent releases? Typically Rights Managed libraries have you covered in that department. Make this part of your research (more on this later) when purchasing RF stock.

Defining Royalty-Free
It is not a transfer of ownership to you. Since the early days, there has been a common assumption that when you purchase an RF disk, the images are now yours to do with as you please. Unfortunately, this is not the case. Instead of purchasing the images, you are purchasing a license. You are basically paying for permission that is granted in the End User License Agreement. This permission is fairly broad, but not limitless, which is why it is important for you to understand the boundaries outlined in any license agreement.

RF is not Public Domain. In the US, Public Domain content is defined by the fact that it has no specific owner, typically because either the work was published before 1923, the copyright has expired or the work was created by the US government. RF content is copyrighted and has specific owners.

All RF is not equal. Every stock company has guidelines for use of their images, and I’ve never seen two alike. Most stock houses offer their images for “unlimited use”, but that can be misleading if you don’t read the fine print. Most RF content is restricted in some way or another. For example, most don’t allow use of their content in pornographic material. In our case (Artbeats), we’ve had to adjust our documentation every year or so to keep up with the changes in the industry. Several years ago we were approached by a large worship music publisher. They wanted to create worship video DVDs comprised solely of our content. From our standpoint, this is akin to purchasing a disk of RF music, then putting all the music as is on a CD, duplicating it and selling it through Wal-Mart as a new hit album. This totally defeats the purpose of the RF publisher and exploits the content in such a way as to deplete its value. Yet, our documentation did not limit the user from such a scenario. We immediately refused the sale to the worship music publisher, re-wrote our license restrictions, pulled all the stock from our shelves, tore them open, replaced the documentation and re-shrink-wrapped them. Our new documentation stated the following restriction: If Digital Media Files are used in a project that will be reproduced, sold or distributed…the Digital Media Files may not comprise more than 25% of the length of the finished work…

So, what is this documentation we’ve been talking about? We fondly refer to it as the EULA.

So, what is a EULA?
EULA stands for End User License Agreement, and it is the most important document that comes with your disk or download. It explains what you can and cannot do with the images. No doubt, the language in the EULA makes for dull reading; however, it contains some very important points. Nearly every stock company has its EULA available on the company’s website for you to check out before you buy (If they don’t I would question their legitimacy). Once you have started using the images it is assumed that you have read and agree to the EULA.

Here are some important highlights of the typical EULA:

Grant of License: This section should contain a specific list of authorized uses. Is it exclusive or non-exclusive? Is it transferable? Can I use the content on more than one computer? What is the scope, is it worldwide?

Restrictions: As mentioned above, nearly every EULA has restrictions. No Royalty-Free EULA will allow you to sell the content as stock images. Here are some other “don’ts” that may be on your EULA:
Defamatory or Pornographic Use
Resale Products
Broadcast
Corporate Identity (Logos, Trademarks, etc.)

Other Stipulations: There are miscellaneous points that can be found on almost any EULA. They may require you to give them a credit if you create a piece for broadcast. So, you may be agreeing to allow your work to be used in the stock image company’s marketing campaign or as a demo in their trade show booth. Is that OK with you? They may tell you that you are using the footage at your own risk because there are no talent releases or property releases on file (scary).

Lastly, if there are points you don’t like about the EULA, do not hesitate to ask for a custom version. Some people have special needs or there may be one little point in the EULA that won’t work for them. Your stock provider should be “customer service savvy” and work with you on this. However, it is not unreasonable to charge you a fee for a custom EULA.

Finally, Be Careful When Using Images of People and Private Property
Whether you are shooting footage of people yourself, or acquiring footage from a stock house, I can’t stress enough the importance of obtaining talent and property releases. In a perfect world, all stock houses would only license footage that is properly released but you can’t assume this. Whether all their footage is released or not is something they probably won’t tell you up front, so you will have to ask them.

When you edit your production, be careful not to give a negative view of the people and property visible in the imagery. For example, don’t license an image of a short guy, then use the image to talk about the percentage of short guys that become serial killers (granted this is an extreme example). Years ago, there was a case that became a wake up call to our industry. An image of a family was licensed from a RF stock photo house and used in a hair-loss commercial. A religious organization licensed the same image to print in a right-wing Christian calendar. These uses got nationwide distribution. The family was appalled to see their image used in this way and especially for a cause they didn’t believe in. They promptly sued both the licensor (the customer) and the stock house. The stock house claimed that they had signed talent releases, but in fact the signatures were not authentic, and a large settlement was paid. Note that the user of the image was also named in the lawsuit, even though he was “innocent”. He is considered an “incidental infringer” but it is still infringement that can be pursued in court.

To sum up, when you license stock footage, be aware of the points in the End User License Agreement, it is your best place for knowledge on what you can do with the imagery. Secondly, know the risks of licensing footage containing images of people. The good news is that Royalty-Free image infringement cases are somewhat rare, so the risk is fairly minimal. Still, it is good to be informed so you can make wise decisions.