A Good Rule of Thumbnail? Pay the Licensing Fee.

You hire a web designer to create a website for your business. In the background, the designer uses stock photography to beautify the page. Stock photography comprises copyrighted images—often presented in searchable online databases—that can be licensed for specific uses. This avoids the need to hire an actual photographer. The designer assures you that he has the rights to use the stock images, or more specifically, he has properly obtained a license to use the photos. Does that mean you can use those photos in your website without violating any copyrights in the photos? The answer is most likely “no.”

Most stock photography agencies such as Getty Images and Corbis Images require anyone who uses their images to obtain a license for the content. Usually, such licenses are not transferable, meaning that even if your web designer paid the license fee to obtain a right to use the stock images, he or she cannot confer that right to you even though you may have hired the designer to design your website. To be sure, one should ask to see the license agreement to determine the license terms and whether the license is transferable. If not, to avoid a claim for copyright infringement, you will need to separately pay the requisite license fee to properly use the photos. The same can be said of licensed fonts (a computer file or digital program that instructs your printer or display on how a letter or character is supposed to be printed or shown, and which can be copyrighted).

Indeed, stock photography agencies like Getty Images employ services that constantly scour the web for improper use of their copyrighted images. Getty Images has a reputation as an aggressive and persistent copyright enforcer. It has sent countless demand letters to businesses of all sizes regarding copyright infringement of its images. In early 2014, Getty Images filed a number of district court cases (mostly in Florida) against businesses for copyright infringement.

Brand companies that hire advertising or marketing agencies to design their websites or social media accounts should likewise ensure that any images used in those websites or social media accounts are properly licensed by the brand company itself. Again, even if the hired agency has a license to the stock photography, if the license is non-transferable, the brand company will be liable for copyright infringement if it does not obtain a license first.

Getty Images started providing an embedding feature in March 2014 that allows users to access and embed any Getty Images-owned photo that has the embed icon (</>) on a website, social media site or blog for free so long as the photo is not used for commercial purposes. Getty Images defines “commercial purposes” as use “in an advertisement or in any way intended to sell a product, raise money, or promote or endorse something.” The photos will include Getty Images’ logo and attributions to the photographer and/or collection name which direct end users to the Getty Images website. Getty Images requires anyone who wants to use its photos in connection with commercial purposes to obtain a license.

Although Getty Images seems to encourage social media users to embed its photos in connection with non-commercial purposes, it is unclear when the use may cross over from non-commercial to commercial. In particular, the definition of “commercial purposes” as including use that promotes or endorses something is vague and broad enough to capture anyone who uses their social media account to post their favorite brands, restaurants or venues. Likewise, a personal blog meant only to chronicle and share one’s own travels and adventures can arguably be used to promote oneself. Getty Images may have purposefully left the definition vague to give itself leeway in deciding who to pursue. One deciding factor may be the amount of money or fringe benefits a social media user or blogger receives from their posts or website. For example, digital influencers, who through their social media profiles gather a large following and are sent free products, trips or money to promote brands and their products, are more likely targets than a person who uses a social media profile only to connect with friends or post personal photos. Thus, a digital influencer would be well-advised to obtain a license rather than use the Getty Images embed tool if he or she desires to use one of the Getty Images photos on his or her social media profile.

If you are not sure if your use is commercial or non-commercial, it is best to pay the license fee or refrain from using the stock photography altogether. For businesses hiring website developers and relying on the developers to select artwork, try to negotiate an indemnity from liability for copyright or any other intellectual property infringement from the company based on the artwork they use. Indemnity clauses may help insulate you from potential liability. Of course, although an indemnity clause gives you recourse against the website developer, it does not stop the copyright owner from (i) pursuing claims against you directly or (ii) requesting removal of the infringing artworks on your webpage. But the indemnity may obligate the web developer to cover your expenses and pay the fees required to secure a new license from the copyright holder to continue using the artwork on your webpage.