Can I use Shutterstock images for advertising?

Compliance & Law

Images on websites, blogs or in the area of ​​social media are not only a beautiful eye-catcher, they also convey messages and emotions. A picture is often worth a thousand words and should be chosen carefully, especially in the media world that reaches a large number of people. Whether obtained from stock pages or free image databases, a very central topic often falls under the table: What about the image rights? Can I use any image that I find on the internet using search engines? Right click, save the picture and I can do whatever I want with it, right? As large as the range of visual media in the vast landscape of the World Wide Web is, so is the knowledge gap on the subject of "image rights".

In the course of my work on numerous projects, I have already given a few pictures a new home on one or the other website and in various social media campaigns and thus faced questions such as: What do I have to consider when using image material on the Internet? What is the best way to fight my way through the jungle of providers and licenses and what to do if a warning comes in?

Lawyer Sebastian Deubelli and photographer Gunnar Menzelauch from www.rights-managed.de deal with these questions. They prepare difficult topics relating to copyright and usage rights in such a way that they can be understood by non-lawyers. Among other things, they provide a "usage rights generator". In the following they answer the most important questions about this topic:

Can agencies include any freely accessible image on websites / blogs?

Just because it's technically possible doesn't mean it's legal. The photographer is neither obliged to use a watermark nor to mark his image as protected by copyright. Google is not an indicator either. I am not allowed to use the images just because there was no reference to the image search. As a website operator and blogger, you should ensure that EVERY image on your site has a license that allows its use and that the author of the image is known. If you cannot cover this, we advise against using it. Images from a Facebook timeline or Twitter are not for free use. Even a source such as "Twitter, Lieschen89" is not enough.

The same thing remains: You have to check whether you have the necessary license and release (releases). If you publish the picture anyway, you are liable.

What about databases that supposedly offer images for free?

We advise against supposedly free images. On the one hand, these databases usually contain restrictions on use in the small print. On the other hand, one should bear in mind how these providers cover their costs, i.e. savings are made at the latest when checking third-party rights (e.g. model releases). There is also no guarantee that the pictures have not been stolen after all. In the end, the one who publishes the pictures gets "one on the lid". The argument of the free image database then unfortunately does not count. You must therefore check who the author is even for free images - firstly to be able to indicate this and secondly to ensure that your planned use is within the scope of the license. A precise check is usually not reliably possible with free image material and should therefore be the usual route.

And if I only use an image as a small icon, is it still illegal?

Yes, even a small-format violation of the law still remains a violation of the law.

How do you find out whether unauthorized images have been used on a website?

The Google image search can be used for a single search. There are various providers who specifically search for or monitor multiple images. In practice, the photographer uploads his picture to a provider and the search algorithms search the web for it. Incidentally, images are also found in YouTube videos, in PDFs and on freely accessible servers. And of course also images that are integrated into websites - no matter how small they are displayed. Afterwards it has to be decided whether it is a justified use or "picture theft". Incorrect finds must also be sorted out. Although this process has to be carried out manually, some providers can then transfer the findings directly to a lawyer. As you can see, images can be found quite easily on the Internet and thus the risk of image users who use unlicensed images of being warned increases.

What to do if there is already a warning?

First of all, you should take a close look at the alleged violation and check whether the accusation of unauthorized use actually exists. In very rare cases there are fake warnings in which an unfair attempt is made to collect money, although there is no legal violation at all. If the warning is correct, you have to consider whether you want to clarify the case on your own or through legal assistance. In any case, one should keep an eye on the deadlines that are set for the submission of the cease and desist declaration, the provision of information or the payment of damages. If you let this pass idly, legal action threatens and a few hundred euros can quickly turn into a few thousand euros. Therefore, please never take such a warning lightly.

Why not just delete the picture and ignore the warning?

According to unanimous jurisprudence, in the event of a copyright warning, the injunction can only be removed by submitting a declaration of cease and desist, which determines that the infringer has to pay an appropriate contractual penalty in the event of a renewed infringement. Mere removal is not enough and usually results in judicial enforcement of the remaining claims. In other words: You have to make a written declaration that you will no longer use the image material illegally and that you will bear the consequences, including damages. Of course, the picture must then also be removed.

Why call in a lawyer immediately?

Because the Copyright Act in § 97a regulates that this may be the case and that the person who has been admonished usually has to bear the legal fees. Personally, I don't think that's morally objectionable either. Admittedly, warned people complain reflexively about it and assert that one would have obeyed even without the involvement of an expensive lawyer. However, practice proves the opposite. There are many cases in which photographers, for example, have gone into battle with picture thieves. The results here are often poor, as the photographer is often not taken seriously and the distance from the picture is often the end of the story. Consequently, legal recourse is usually the most effective.

When is the compensation due?

Usually for every violation: According to § 97 UrhG, compensation is due if the unauthorized use was intentional or negligent. However, the level of fault has been set so high by the case law that one can only avoid paying damages in absolute exceptional cases.

What about stock image providers? Are all stock image providers the same?

Absolutely not! Stock agencies differ greatly in the image material they offer, the terms of use and, ultimately, in terms of price. Three points should lead to a selection of the picture agency:

  1. Images: Can you find the material you need from the respective provider? The question of exclusivity is also important here. Most stock agencies do not offer any exclusivity for the image material, i.e. the preselection should be made on the basis of these factors.

  2. Licenses: The project or briefing ultimately determines the license. Online or offline, circulation, region, repeated use of the images and other factors form the requirements for the image license. Most stock providers therefore offer different license models. Please check beforehand whether all types of recycling are covered. We simplify the check with our series of articles on stock agencies, in which we give an overview of the terms of use for the major stock providers such as iStock, Fotolia, Thinkstock or Shutterstock, without having to dig through the fine print.

  3. Price: The two previous points determine the price. The more exclusive material you need and the more far-reaching the images are to be used, the higher the price per image. It is important to find a middle ground here. Subscription models, for example, can help, but these also have a very precisely described license that you should definitely check before signing up.

What if pictures are only used on social media?

You can think of social media use as a type of exploitation. For every picture that is to be used on Facebook, for example, you have to check whether you can use the picture and in what form. This is what the stock provider specifies in his license. Most providers allow use in the social media area. But there are various guidelines on how this should be done. One provider, for example, requires the stock agency and the author to be entered manually in the image, another limits the size of the image and requires that part of the image be covered with its own logo.

It is therefore important to clarify which requirements I have to meet for which provider. Two aspects have to be clarified in conclusion: How can I use the image and how must the author be named.

Can I pass on a picture that I have bought to friends' blogs?

In most cases: no. This point is usually excluded with the prohibition of sublicensing in the terms of use. The author or the stock agency ensures that only they can license and that other users also have to obtain a license from the source.

What should I watch out for when I buy images on behalf of customers? Can I then also use it for other customers or campaigns?

Three points must be clarified here:

  1. Can I even purchase the pictures on behalf of the customer? If you as an agency want to acquire images and pass on the rights, this is not possible by excluding sublicensing. Stock providers usually have clear ideas about how the license acquisition for customers should be carried out. Authorization is sometimes required or the customer has to buy directly. Unfortunately, this is not standardized and varies from provider to provider. In other words: You have to read exactly how to proceed in the FAQs or the licenses or call the provider directly.

  2. How do I ensure that the customer only uses the images as intended, i.e. does not violate the license? When purchasing images for customers, make sure that the customer is informed of the license terms for that particular image. You should also not be held liable for possible violations. Print data are usually used longer than expected - the beautiful image is still used for a print campaign, although the photographer was only asked to use it online. But as an agency it is difficult for you to control that when you pass on pictures. The customer is ultimately liable because he publishes the pictures. But the expectations of the agency remain. Our tip: As an agency, you should also guide your customers with regard to usage rights; you usually know your way around better.

  3. Use for other customers will in most cases not be permitted. Usually the standard licensing is done directly for the respective customer. Subscription models could help with the problem. Please also take a careful look at the fine print here. Some stock providers exclude storage on a server. But if you want to use images for other customers and campaigns, there is usually no way around a server. (sh)