Taking Stock of Usage of “Stock Images” and “Stock Footage”

Taking Stock of Usage of “Stock Images” and “Stock Footage”

We often stumble upon terms like “stock images” and “stock footage” in the media and entertainment industry and have wondered what these terms mean. Simply stated stock images are generic photos created without any particular project in mind or is an archive of an image which is capable of being exploited, whereas stock footage also known as stock video/ B-roll are pre-filmed footages such as animal clips, nature video, food videos, etc. Both, stock images and stock footage provide for interesting assistance in content creation, their usage is cost effective, amongst other traditional paths such as hiring a production crew or selection and visit of the shoot location, which would certainly be more expensive.

The concept of stock images and stock footage first originated in and around 1920’s and since then has evolved tremendously, whereby stock images and stock footage are drastically used by businesses, advertisement agencies, newspapers, digital media and print, and entertainment industry among many others.

In today’s digital era, images or videos can be searched, and hundreds of results are made available on the click of a button. Does this mean that an image or a video which is easily available on the web can be downloaded and used freely without any repercussions? No, this is not true.  Stock images and stock footage are covered by copyright laws and the owners/rights holders are thereby protected and can legally enforce their intellectual property rights. Though in several countries the concept of stock images and stock footage is not specifically spelt out by its copyright laws, however, the same have been recognized by the courts.

Usually, while searching for an image or video, we find a perfect fit for our requirement, and such an image and/ or video also mentions the term “royalty-free”. However, one must be cautious before using the said image or video as irrespective of it being “royalty-free”, it is still a stock image or stock footage and the term “royalty-free” is a bit of misnomer.  The thumb rule here is that “nothing is for free” and thus one must carefully read the terms and conditions prior to using any stock image or stock footage available online.  The terms and conditions will normally contain a fine print stating that the stock image or stock footage is not available for commercial purposes.

With the rapid onset of the digital era, stock image and stock footage have undergone a massive change, the prominent outcome of the same being “stock photography agency(ies)” such as Shutterstock, Getty Images who supply “royalty-free” images upon issuance of a license. The license issued by a stock photography agency is usually a restricted license for specific uses and/or duration as against a usual license for stock images which will consist of non-exclusive, perpetual, non-transferable, non-licensable, worldwide license. The licenses provided for the  usage of stock image or stock footage can be broadly categorized as follows:

  • Standard License: The use of stock image or stock footage in a standard license is generally restricted to the number of reprints, reproductions and/or duration.
  • Enhanced License: The use of stock image or stock footage in an enhanced license will usually have fewer restrictions and will grant additional uses.
  • Rights-Managed License: The rights-managed license is a type of stock image license whereby the price is calculated basis, the number of usage; the image size, placement, geographical areas; medium and duration of use; viewer/potential viewers, etc.
  • License by providing credit: The use of stock image or stock footage may be granted by providing credit to the owner. This could also be one of the conditions in any of the abovementioned licenses.

While availing a license from a stock photography agency, one must be mindful of selecting the accurate seat license, as per its requirements i.e., a single-seat license whereby only one person will be allowed to download the image onto his or her device or a multi-seat license whereby specified greater number of people (usually 3 – 5) will be permitted to download the image. There exists a common thread of restrictions in such license agreements viz. usage:

  • for unlawful purposes;
  • leading to defamation;
  • alteration of content marked as “editorial or intended for editorial purposes”; or
  • as a trademark or logo.

A question that arises is – can one get in legal trouble for the usage of stock image or stock footage without authorization. The answer is yes if stock image or stock footage have been used, without procuring prior authorization, permission or license from the owner or rights holder, or is used in contravention of the terms of the license. In such a situation, one may be sued for copyright infringement, violation of privacy rights, damages (amongst others). Under the circumstances of usage of stock image or stock footage without a license, one is most likely to receive a cease-and-desist notice asking to take down such stock image or stock footage coupled with damages being sought towards such usage, which are exorbitant. In today’s digital era tracking any unauthorized usage is easy and several entities have deployed online monitoring systems which is an artificial intelligence driven mechanism that actively checks, filters and/or alerts any unauthorized usage of stock image or stock footage.

To protect yourself from any legal issues associated with stock images or stock footage, it is crucial to adopt best practices such as evaluating if the stock images or stock footage proposed to be used is in the public domain, if not, one must secure an   appropriate license.  For a better understanding, stock images and stock footage in the public domain means stock images or stock footage whereby/ in which no copyright subsists and can be used freely without any form of authorization.  

It can be said that there is one primary exception to the exclusive right of an owner of copyright or a claim for copyright infringement arising out of usage of stock image or stock footage which is the concept of “fair-use”.  The principles of “fair use” does not revolve around what we think is “fair” but everything to keep balance in favor of public interest. The concept of “Fair Use” was first discussed in the case of Folsom versus Marsh[1] wherein Justice Story reasoned that –“……we must often, in deciding questions of this sort, look to the nature and objects of the selection made, the quantity and value of the material used and the degree to which the use may prejudice the same or diminish the profits or supersede the objects of the original

work.” There are certain countries such as United States of America which recognize “fair use” as an exception and are covered under Title 17, § 107 of the U.S. Copyright Act, 1976. [2]

Getty Images Inc., one of the prominent stock photography agencies, has been at the center of copyright infringement suits pertaining to stock images. In an interesting case, in 2014, acclaimed photographer, Carol Highsmith (“Carol”) sued Getty Images,[3] as Getty Images had issued a license for Carol’s photographs which were in the public domain and failed to even adequately credit Carol. The images were donated by Carol to the Library of Congress and thus qualified as “freely available works.” The U.S District Court dismissed the case relying on the aspect that works in the public domain are regularly commercialized and the original author has no power to abate such commercialization.

Institutions and organizations such as the Library of Congress, Wikimedia Commons, Yale University Digital Commons provide for works in the category of public domain stock images and/or stock footage that can be used without copyright restriction however, subject to license issued by such institutions.

The use of “stock images” and “stock footage” is evolving in India and so is the concept of fair use and the legal principle of de minimus. Unlike the U.S. Copyright Act, the Indian Copyright Act, 1957 does not have a specific provision on “fair use”.  However, in the Indian context, the doctrine of fair use may not be squarely applicable as a defense for usage of stock image or stock footage as such a defense would mean that there is or was no obligation on the user to procure permission from the owner of copyright, which would be contrary to the Indian Copyright Act, 1957.  However, a defense of de minimis (i.e., usage of stock image or stock footage being trivial in nature) would be worth considering.

Both, stock images and stock footage are a source of low-cost content and are constantly being used, it is thus critical, to conduct a thorough due diligence and/or procure the requisite license from the owner or rights holder prior to use of any stock image or stock footage. A legal dispute arising out of usage of stock image or stock footage may not just be restricted to a claim for copyright infringement and damages but may also extend to breach of personality right and thus procuring appropriate license and adherence to the terms of such license are the key to avoid being entangled in any litigation.

Footnotes and References

[1]     9 F Cas 342 (1841)

[2]     fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by section 106 and 106A, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

[3]     Highsmith v. Getty Images (US), Inc., et al, 2016


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