Why Rights-Managed Photography Licensing Still Matters

Rights-managed stock photography (RMSP for short) simply means that the customer and the photographer (or his/her agent) negotiate the terms of the photo use. This provides a customized licensing contract, known as an end-user licensing agreement (EULA). The EULA can be renewed or renegotiated later, and the customer gets direct personal service. Another advantage to RMSP is that the customer can negotiate either:

1. Exclusive usage (nobody else can use the image at all). Photographers and their agents seldom do this except at relatively high rates, because it locks the photo away from any other commercial use until the contract is over. Not many photos in any given portfolio are high enough in quality, yet limited in audience by their narrowly specialized subject matter, that they would garner this sort of agreement. Yet it can be done, and the capability is there…for the right price. Such has been the case for the shot above, which has been demanded only by a specific hydroelectric concern, and was “perfect” (in their words) for the intended purpose. Or…

2. Limited exclusivity–no other usage is done by clients in the same field or a competing industry. For example, if I license this image of a tornado going through a wind farm, to a wind-power company, limited exclusivity would keep me from licensing the same shot to another wind-power company. It’s a fair deal for both parties, but might cost a little more than non-exclusive (below). I’ve licensed many images this way, and am glad to do so. [The photo above is not licensed, either exclusively or with limited exclusivity, as of this writing.]

3. Non-exclusive–nothing in the agreement prevents any other client to license the same photo. For example, this “Impaled Palm” image once was contracted simultaneously to an insurance agent, to a material supplier for the construction industry, and to attorneys who represent clients against insurers! It seems weird, but none of those parties asked for even limited exclusivity. Photographers prefer this, because it maximizes their licensing freedom. Many clients don’t seem to mind that, but of course it comes with some risk of redundancy.


Then there are the royalty-free and “dollar” sites, which offer images to anyone for any use, for a one-time, flat fee. It’s the cheap and easy way for many photo users to go, especially websites and small businesses who don’t want to pay for either exclusivity or professional quality/service. But there are three big pitfalls that many cheap-photo buyers do not understand, at least until after they see the same image used by a competitor, or by a disreputable outfit, or the legal notice is served for copyright violation.

The company you keep: For example of this, I’ve heard of the same “dollar” image being used on the websites of a church, and of a whorehouse in Nevada. I promise you this: neither my stock agent nor I ever will license my photography to anyone in industries I consider immoral or objectionable (such as businesses or websites that are sexually explicit, racist, terrorist, or anti-American). The royalty-free sellers have no such scruples–everyone come, everyone served…for a few bucks! If you don’t think the Hezbollah jihadists, Ku Klux Klan, any given bordello in Bangkok, or a rated-X hardcore site can’t have a use for any of the images you display, think again. You’d be surprised.

Your photo is his photo is their photo: What happens when you buy “stock” images from the cheap sites? Aside from losing professionally high quality and skilled composition that you find in RMSP, you sacrifice uniqueness or rarity. Your image is also that of many, many others. You get the same tired old shot as a shocking number of other online sites, web and print ads, and assorted publications already have been using for years and years. Consider these examples (all links valid as of March 2012, no guarantees or updates thereafter):

1. You’re a young sales professional seeking a clean and fitting image of a kind-looking handshake offer to decorate your Yellow Pages ad and web page. You crank open a common cheap-image site and see this shot that seems great; it portrays the positive image you’re offering as the trusty maker of the deal. Problem is, somebody else already has thought of that–indeed, several somebodies, such as this somebody (in Canada), this somebody, and this somebody (in Australia). Wow, guess that wasn’t such a great idea after all…eh?

2. You’re the author of a chess site, and you want a small, clear, well-lit thumbnail image of a piece. Good for you! This one seems ideal. Did you also know that the very same photo also appears here, here, here (in Latvia), here, here (Glendale loves overused cheap-site images), here, here, and here (French-Canadian)?

3. You’re an attorney or paralegal in criminal defense, looking for a shot of somebody’s wrists locked in shiny, cold steel. It grabs the sympathetic eye of the accused, and tells them, “I’m here to save you from this awful ordeal!” Not exactly an original thought, you suppose, but…you find and like this one. When your competitor did a search for that photo in Dec. 2011, just for fun, he found 61 matches, many from attorneys, some not. Some of the sites also using that image included this site, this site (in France), this site, this site, this site, this site, this site, this site, this site, this site, this site, this site in Canada, this site, this site, this site, (site look familiar?), this site (shall I go on?), and numerous others. Damn, is it ever ubiquitous! Are you sure now that you want it too?

4. You’re the lowly corporate webmaster. You see today’s 117 new e-mails awaiting, and open the first one red-flagged “URGENT!”. Here it is, diversity–the pop-fad human resources mantra of the age! Image-obsessed bureaucrats in your company are demanding every possible portrayal (reality being another matter altogether), including on the website. Attached you find a cheesy video from the EEO department with the following message blaring forth: “Diversity is great, rah rah rah! Hip hip hooray, for diversity today! Cheer along with me: D-I-V-E-R-S-I-T-Y, DIIIIIIIIIIIIIIIIIIIIVERSITY!”

Oh, joy. And now you’re supposed to drop everything you’re doing, including that latest hacker-prevention security fix to stop those suspicious Iranian IPs that have been showing up lately, and instead illustrate “diversity” on your firm’s website–somewhere, everywhere, somehow. The first thing you do? Try to find a shot of people of different races and genders, natch, because that’s how culture has conditioned you to define the term.

Get it fast. Get it cheap. This one from a royalty-free site certainly qualifies…look at the gleefully diverse people! You buy and use it on 23 different pages, satisfied your boss will christen you with the promotion to IT head that’s about to open. Why, then, does the outgoing IT chief get so pissed at you the following week? Because she’s no dummy, and she has seen it before, probably either here, here (UK), here, here, here, here, here, here (France), here, here (UK again…bloody regurgitators!), here, here, here, here (so pixelated, they look as if they’ve contracted measles), here (cropped to show just the ladies…and a British site, of course), here, and here!

The sad thing is: everybody who built each of those websites probably thought they were doing a great thing for their client(s) to grab that shot just for themselves.

Copyright-infringement liability risk: Perhaps worst of all, your business could be held legally liable for copyright infringement from the ultimate rights holder, if your webmaster didn’t obtain a EULA for that image from its rightful agent or photographer. Written EULAs rarely are given from the “dollar sites”. Some “dollar site” and “royalty free” photos are pirated (stolen) from the original owner, and posted to photo sites unscrupulously by third parties. I have found a few of my photos illegally posted to such sites–and yes, succeeded quite well in the resulting piracy claims. Try as they may (or may not), not every site perfectly fact-checks every incoming photo to ensure that it belongs to the person who submitted it. When that happens, it sets up a big legal can of infringement whoop-ass just begging to be opened.

Copyright violation is costly to the bottom line and to a business’ reputation, as the court case will go on the public record. This is true even if the violation is claimed to be inadvertent or passive (negligent or so-called “innocent infringement)!

For all these reasons, I strongly recommend sticking with RMSP to ensure not only quality, but exclusivity (where desired), legal protections, peace of mind, and actual customer service from a photographer or his representative.


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