Rights Managed Image Exclusivity and Sharing Sites

Posted on 4/27/2015 by Jim Pickerell | Printable Version | Comments (0)

Recently, I was asked to comment on the following question.
    If a photographer has an image exclusive contract with a stock agency, and the stock agency sells those images under a Rights Managed license, can the photographer simultaneously post the same images on:

    (a) sharing websites where the images can be used under a Creative Commons license (i.e., Attribution only);
    (b) sites that offer the image to be used by any viewer via an embed code or sharing bar;

    (c) sites where the photographer grants a Royalty Free license to the image under the site's Terms of Service?

    In other words, even if these aren't licensing sites, does image exclusivity allow a photographer to post and share the same RM images around the Internet on Behance, Tumblr, Facebook, Instagram, Twitter, StumbleUpon, Reddit, Flickr, Pinterest, Ello, Tsu, LinkedIn, and so on?

    (It's understood a photographer could post the same images on their own website and in portfolios.)

This question makes my head swim.

To a great degree it depends on the contract between the photographer and the RM agency. Contracts differ from agency to agency. In many cases, but not all, the photographer is allowed to “license” images to customers directly. And I suppose, although I don’t think it is ever spelled out, the photographer would be allowed to give a print to a friend.

Most Rights Managed agencies assume that the photographers they represent are interested in earning money from the images they have produced, not giving them away. It is one thing to give prints to a friend, or even post pictures on the wall of a local establishment in hopes of getting assignment work.

But when you post images on any of the sites listed above suddenly the whole world becomes your “friends.”  All may think you would be more than happy to have them use one of your pictures, even if you never know about the use. And even worse, they may think that if they have an idea for how they can make money using your picture they have every right to do it and no responsibility to share any of their earnings with you. That’s the Social Media way!

From the RM agency’s point of view it is hard to argue that a customer should pay a fee (particularly a good fee) for an image they find in one location if they can get it for free at another location. It can be very embarrassing for the RM agency that is asking $300 for a relatively small use of an image when the customer says, “I found it over here for $10 -- or for free.”

Not only will the agency lose a sale, but the customer will likely go to the free source to get any future images they need. If the RM agency decides to match the price of the low priced source in order to hang onto the customer then the photographer will yell and scream about how bad their agency is because they charge such low prices.

Many argue that because there are so many images available online the chances of a customer finding the same image it two locations is very slim. If a customer starts out by searching an agency site like Getty Images or Alamy, and finds an image they would like to use, it would seem very unlikely that they could find the same image somewhere else at a different price point, or free.

But if the customer is smart, they will do an image search on Google, Tineye or Bing to find other places that image might have been. Chances are not only will they find lots of uses of the same image (particularly if it is also available on a social media site), but they may get some hints about where they can go to find the creators, or other licensor of the image.

Posting On Social Media

It also makes a lot of difference as to where you post the image. The rules on every one of the social media sites mentioned above are different. Anyone considering posting on these sites needs to carefully read “and understand” the Terms of Use. Some of these documents run to 15,000 words of legalese.

The big question is do viewers of your image also have the right to use your image and how? If they use it, are they required to give you credit? And then, of course, what rights does the site itself have to use your image and profit from it.

Pinterest is an interesting example. Back in 2012, after carefully reading the Pinterest Terms of Use, Kirsten Kowalski, an Atlanta based portrait photographer and a lawyer concluded that if the images she posted on Pinterest happened to be used by someone else she was at risk of “being sued, AS THE INFRINGER, and then being liable for indemnification and defense costs and ALL damages.” (Ms Kowalski does not specialize in copyright law.)  Much as she liked the Pinterest concept she deleted all her pinterest inspiration boards.

On the other hand, if you have images on Getty Images you could also make a little money by posting them on Pinterest. Getty has entered into an agreement with Pinterest that requires the social media site to pay them a fee whenever one of the images in their collection appears on Pinterest. The photographer’s royalty share for such a usage is $0.01 (one cent). And, of course, anyone else can use the image. And there is that liability problem.


It is important to note that just because an image is on Flickr that doesn’t mean it is FREE. Only about 300 million of the billions of photos on Flickr have Creative Commons licenses and many of those require attribution or cannot be used for “commercial” purposes.

Many Flickr contributors are not interested in licensing their work, but a significant number do use the site to market their work. When one of their images is found as a result of a keyword search it is very clear that the photographer must be contacted and the images licensed before use. I know of one photographer who is earning about $40,000 a year from images found on his Flickr site.

Stolen Scream

Finally, it is worth considering the saga of Noam Galai. Back in 2006 he created a self-portrait that he called “The Scream” and posted it on Flickr with no indication that compensation for use was necessary or required. That pictures has been used on T-shirts, posters, in protest rallies and in countless different ways around the world. The picture has probably generated tens of thousands, if not hundreds of thousands, of dollars in revenue for various users.

In 2008 National Geographic contacted Galai and asked to license usage of his picture for Glimpse Magazine. This is the one and only time he has ever been paid anything for the hundreds of different uses of his picture.

Royalty Free under Terms of Service

Item (c) is very confusing with regard to what the term “Royalty Free” means in this context. If as part of the social media site’s Terms of Service they are saying that anyone can make unlimited use of any image on the site, then that is just another way of saying that site users can do anything they want with any image found on the site. I presume the site isn’t receiving any direct financial compensation for the “license,” and I suppose the photographer is receiving nothing for granting this license. But, if a photographer wants to give away everything, that’s up to him or her.

As described above, I would think the RM agency would not be happy if they knew that the image was also available on a social media site and free use was being encouraged. On the other hand RM agencies sometimes allow unlimited use of an images. In the stock photo context Royalty Free really means “unlimited use of any image purchased.”

In this case the big concern for the image creator is the liability he or she is taking on if this image is ever used by anyone, in any way, that results in a legal action. This would be particularly true if there are any human beings in the picture.

Contributors to social media should keep in mind that the lawyers working for social media sites are doing everything possible to limit any liability for their employers and to pass on any risk, no matter how small, to the contributors. If nothing ever goes wrong it may not be a big problem, but if anything does go wrong it will be the contributor who is the losers.

Copyright © 2015 Jim Pickerell. The above article may not be copied, reproduced, excerpted or distributed in any manner without written permission from the author. All requests should be submitted to Selling Stock at 10319 Westlake Drive, Suite 162, Bethesda, MD 20817, phone 301-461-7627, e-mail: wvz@fpcubgbf.pbz

Jim Pickerell is founder of www.selling-stock.com, an online newsletter that publishes daily. He is also available for personal telephone consultations on pricing and other matters related to stock photography. He occasionally acts as an expert witness on matters related to stock photography. For his current curriculum vitae go to: http://www.jimpickerell.com/Curriculum-Vitae.aspx.  


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