Published on June 9, 2016
Posted in: Blog, Jennifer Kulyk
You are given the task of designing your company’s logo. In the midst of your work, you find an image of a lion via a Google search and want to incorporate it into the logo. In such a case, copyright law steps in to protect creators of original work. Just because a photo is searchable on the Internet, does not mean you are permitted to freely copy and use the image (that is, without the risk of legal repercussions), especially if you want to use it for commercial purposes. While copyright law places limitations on the use of images pulled from the Internet, permission may be sought from the copyright holder.
If obtaining permission for use of an image, whether from an individual or company, expect to pay a fee. Oftentimes, permission will come in the form of an End User License Agreement (or “EULA” for short). There are numerous stock photo websites on the Internet that offer licenses for images. Companies include Shutterstock, iStock, BigStock, Stocksy, and so on. When you purchase a license for an image using one of these sites, you enter into an EULA with the company, who is the licensor of the image. By clicking “Accept”, you, as the licensee, are agreeing to comply with the terms set out in the EULA
Just because you have purchased a license to use an image, does not mean that image is yours for use in perpetuity in any manner you please. When it comes to EULAs, you are not purchasing the image; rather, you are purchasing the right to use the image under specific terms. The licensor who holds the rights to the image has discretion to determine what those terms are, including the scope of permitted use.
Yet, more often than not, individuals entering into EULAs speedily scroll to the end of the page and click “Accept” without understanding what they are agreeing to. If you unclear on the terms of an EULA, there is the risk that you may find yourself in legal trouble somewhere down the road. Depending on what the image is used for, this could land you, your company, or your client in hot water. Also, there is the very real risk that you or your client may incur significant expenses in implementing the image that you cannot recapture, i.e. signage for your business, advertising materials, stationery, etc.
Say, for instance, you purchase a license for the lion image and the lion becomes your company’s logo. Your company – excited about the new logo design – prints it on store signs, apparel, and so on. You are congratulated on a job well done. But what you failed to read in the EULA is that you are prohibited from incorporating the image into a logo. Three months later, you receive a letter in the mail from the legal department of the stock photography website through which you purchased the license demanding that you cease all use of the image. All of this could have been prevented had you read the EULA.
Any time you enter into an EULA, you need to be aware of what the agreement entitles you to do with the image and any restrictions associated with its use. There are different types of EULAs that offer varying or additional rights (with diverse price points). In any case, there are a number of key areas you need to consider in reviewing an EULA:
- What is the scope of permitted use? Is commercial use permitted?
- Is the license or the image transferable? Are there any restrictions on transfers?
- How many users are entitled to access the image?
- Are there any specific restrictions on use?
Scope of Permitted Use
EULAs set out the scope of permitted use, which may range from basic use on a website to use in commercial products, such as t-shirts. Often, there will be specific rules on permitted commercial use. If you are intending to use the image in a way that is not spelled out in the EULA, then your best option is to contact the company licensing the image for permission and approval (in writing) to use the image for that use.
There may be a provision in the license agreement on whether transfer or assignment of the image and/or license is permitted. Some EULAs clearly state the license agreement is non-transferable, while others permit limited transfers of the image to third parties (for instance, transfer to a commercial printer).
Number of Users
EULAs normally specify seat/user license restrictions. The license may only entitle one person to access the image, or it may specify a set number of people. If the licensee requires further access, there is often the option to purchase a multi-seat license which enables multiple or an unlimited number of individuals within an organization to access the image.
License agreements contain specific restrictions. Oftentimes, there is a term which prohibits the use of the image as part of a trademark, design mark or logo. Most EULAs also prohibit use of the content in ways that may be considered pornographic, obscene, defamatory, libelous or otherwise indecent.
As mentioned, there are many companies that license stock images. Do not assume that all EULAs are the same – while the areas covered may be similar, it is quite likely that the specific terms will differ. EULAs vary by company and by type. The only way to know the scope of your rights is to undertake a thorough review of the EULA.
Admittedly, EULAs are not always straightforward – they may contain wordy and confusing legal jargon. In such a case, it is advisable to enlist the help of a lawyer so that you can be sure of your rights and avoid a potentially adverse legal predicament. If a term in the EULA is unclear, another option is to call the company that is licensing the image. If you pursue this option, ensure that any response you receive from the company is in writing.
Claiming ignorance will not protect you from the implications associated with non-compliance. Given the seriousness of an EULA breach and the potential repercussions, err on the side of caution and know what you are agreeing to before clicking “Accept”.