Why and How Marketers Need to Vet Public Domain Images
Images have always been an important part of marketing campaigns, but the rise of mobile devices — with their built-in cameras — and apps like Instagram have pushed visual culture into overdrive.
Today, marketing success can hinge on a brand’s ability to effectively use images to cultivate an identity and reputation, increase awareness, catch attention, and promote content. However, most organizations just aren’t equipped to meet consumers’ ravenous demand for “authentic” images, which is why they are increasingly turning to stock photography, through stock photo community sites and public domain images.
While public domain images are a valuable resource, they should be used with caution. Public domain images and stock photography are not one and the same, although they are increasingly presented as if they are. Image usage rights can be complicated, and before posting a public domain image online, companies need to understand the risks involved.
The Public Domain
Public domain images are free from copyright — either because they expired or never existed in the first place — meaning that individuals and businesses can use them for just about any purpose.
Public domain images have a number of benefits. To start, they can be cheaper and easier to use because marketers can simply turn to one of the many public domain image search sites and instantly find fresh, relevant images that suit their needs. Public domain images also have an edge over traditional stock photography, which has become notorious for surreal, strange and stilted imagery that make consumers roll their eyes, rather than click.
But just because public domain images are free from copyright does not mean they can be used without vetting. Public domain images and stock photography are not interchangeable, although companies like Google have tried to make it seem like they are.
Often buyers turn to public domain images because Google puts them ahead of stock photography agencies by distorting organic results, whether it’s intentional or not. This is problematic because it can get unwitting businesses into trouble. Public domain images should not show up for a search after stock photos, just as stock photos do not show up for a search after public domain images.
Even a business that knows it can’t use a photographer’s work without their consent may not know of the risks involved in using public domain images as if they are stock photos. For example, public domain images do not include all the security factors of a stock photo — just because an image is in the public domain does not mean it’s free from risk of copyright infringement.
This is not an abstract concern. A few months ago, a woman named Leah Caldwell sued Chipotle for over $2 billion because she claimed that the company used her image in promotional material without her consent. In 2006, a photographer asked to take Caldwell’s picture while she ate at a Chipotle near the University of Denver. She declined and refused to sign a release form for use of the images. Eight years later, Caldwell walked into a Chipotle in Orlando, Fla. and saw her picture on one of the walls. She later found her image in two California Chipotles as well, so she sued.
This is a dramatic example, but it’s certainly not the only one, and illuminates how risky it can be for a company to use an image without thorough vetting. Public domain images are provided with little warranty and they are not model-released or property released. As a result, using these images commercially is a gamble. The photographer gives the rights — not the model — meaning the model can sue the designer if the image is used commercially. This is why huge international brands like Coca-Cola or McDonald’s — which rely heavily on “natural” and “real” images of people in their marketing materials — tend to avoid public domain images.
When using public domain images, marketers need to conduct due diligence. Vetting questions should include:
- Was the image truly uploaded by the author (and not “stolen”)?
- Is the image site available to everyone?
- Are the images reviewed?
- What incentives do the photographers have to provide great image collections for no fee?
The model needs to be considered, as well. Did the person in the photo sign a model release? Otherwise, this opens the door to a challenge for any commercial usage, as unfolded with Caldwell and Chipotle. Damages can run as high into the eight-figures for a single image, even when the model is paid.
Another consideration is whether an image, even if it’s in the public domain, contains trademarked items. Any marketers worth their salt know not to use the logo of a famous brand, but what about trademarks such as Adidas' signature three-stripes on a piece of clothing? Moreover, since no public domain images include model releases, any image that includes an identifiable person can run the same risks of a lawsuit as Caldwell’s case.
Lastly, photographers and designers need to ask themselves some questions before going the public domain route. For photographers, uploading an image under public domain means anyone can do anything with that image, including reselling it.
This is how Getty Images received a $1 billion lawsuit from photographer Carol Highsmith, who discovered that Getty licensed some of her public domain images and went so far as to send her a letter demanding payment for using one of her own public domain images on her own website. Highsmith claimed gross misuse and false attribution of nearly 19,000 images. The courts sided against her, but it was a high-profile case.
As with any business decision, thought and care need to go into the image selection process. While, to the untrained eye, public domain images and stock photography may seem to fall under one category, they do not, and misunderstanding public domain images can get businesses into trouble.
Serban Enache is the CEO and cofounder of Dreamstime, where he handles the business development strategy for the company, and is deeply involved in the everyday operations of the website community. In 1998, he co-founded Archiweb, an award-winning leader among Web design companies in SE Europe, and envisioned the later-to-be stock agency in early 2000. As the creative director of Archiweb, he has helped a multitude of companies to establish or improve their online presence.