Author: Mgr. Iva Čípová, 4. 5. 2022
In our practice, we often encounter that our clients (usually e-shops, but also marketing agencies) purchase photos in image banks. Most of them don't think that buying a photo from an image bank can be risky or cause them unexpected troubles. However, basic caution is needed when buying and using these photographs.
To clarify, the author of the photograph cannot sell the photo to you, he/she can only grant you a license to use it, which may be for a fee or provided free of charge. The license gives you permission to use the photograph in a specified manner.
Image banks provide licenses for photographs that are either free or for a fee. However, don't think that photos in image banks offered for free are not copyrighted - they are copyrighted in this case too, only the license is free. Unfair observation: the downside of photos with a free license is that logically more people will use them than with paid licenses, so you won't be very original.
The problem with image banks is that the origin of the photos placed there cannot be clearly verified. So what to avoid when buying photos?
The use of a photograph requires the consent of the photographer. A photograph offered in an image bank may be limited by a license agreement. If you want to buy a photograph for commercial use, check whether commercial use is allowed and whether the use is limited. The license may also be limited by territorial scope, time scale or on graphic modifications.
Photographs that depict recognizable people are at even higher risk. Depictions of people infringe on their personal rights and consent is required to use these photographs. The problem is that this consent is revocable at any time. So, you may in good faith buy a photograph for your maternity clothes shop showing a smiling young mum-to-be, but you cannot be sure that she has not withdrawn her consent to the use of her photograph a few days ago. Unfortunately, under the law, the responsibility goes to you. According to the law, the injured "model" turns directly to the user of the photo, i.e. you. So if you download photos from image banks, try to avoid these photos.
You should also be careful with photographs that include logos of foreign brands. These brands are very often protected by trademarks and you could violate this protection by using the photos. In fact, most brands are unlikely to have given permission for their logos to be included in the photo library. Some companies do allow the use of their logos - but you need to comply with their terms and conditions, which can usually be found on the company's official website.
Clients often pay for photos that, although original, contain a different trademarked photo taken by a different author. In this case, the client cannot be sure that the photographer they are paying for the photo is licensed to use that original photo. If you use such a photograph, you are putting yourself at risk - the author of the original photograph may take direct action against you because you are using their work without the necessary license.
Some companies have built their business on finding unlicensed photos and then claiming royalties, damages, unjust enrichment, etc. These companies may contact you with this demand and even if you have properly purchased the photo, it is very unpleasant to deal with this situation and prove your rights.
The image company should be the one responsible for the proper sale of the photos, which is what most clients assume. However, in practice, an image company is only liable for what it has expressly confirmed in its terms and conditions. It is therefore necessary to read the terms and conditions of the image agency before you buy so that you are not unpleasantly surprised in the future.
If you purchase a photograph properly from an image agency but you are subsequently forced by the author of the photo to withdraw the photo and pay the required sum, you can claim damages from the photo agency (if the photo agency is liable under its terms and conditions). This sounds relatively simple, but you should be aware that a large number of image banks are based abroad (especially in the USA). Such lawsuit would therefore involve higher costs than a lawsuit in the Czech Republic, and it is not a matter of several months either.
Although you are certainly hoping for a simple solution, unfortunately we cannot offer you one. Buying a photo from an image bank always involves a certain degree of risk, because you are relying on the image bank to determine whether it has the necessary license from the author, whether it has the consent of the person depicted and whether, if necessary, the consent to publish the depiction of the person has been withdrawn or not. In our experience, it generally doesn't matter whether you get the photo for free or you pay a high license fee.
The safest way is to use your own photos, especially for large and important campaigns. If you are going to use a photos depicting people (even if the photos are your own), make sure that you have their written consent and that you enter into a contract with that person which sets out the terms and conditions of the use of the photos.
Not sure about the legal setup of license agreements? Do not hesitate to contact us, we will be happy to advise you and prepare all necessary documents.
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