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The Restrictions in Stock Image Licenses Illustrators and Designers Need to Know

Posted by Rebecca Blake on October 06, 2015

Microstock websites – websites that purvey low-cost photos, illustrations, and icons – have become a standard image source for designers with small budgets and undiscriminating clients. Illustrators have also used microstock, either in the creation of collage or montaged imagery, or as reference material for illustrations. However, both designers and illustrators are cautioned to read through the licenses employed by microstock sites. The low fees and “royalty free” label extended by microstock sites do not translate to unlimited use of their images.

The terms of use of six microstock sites reviewed for this article – Thinkstock, Shutterstock, Getty, iStockPhoto, Dreamstime, and 123RF – all clearly stipulate that their licensed imagery cannot be used in the creation of logos, service marks, or trademarks. The language used to define the restriction varies slightly from site to site. Getty Images implies that an exception to the restriction can be requested in writing. Dreamstime restricts the use of their images in the creation of trademarks, but not logos. The remaining four sites are unambiguous in prohibiting the use of their licensed image in logo creation.

Restrictions which would affect illustrators seeking to use stock imagery as source material are not always as clearly spelled out. The license agreement for Getty Images is an exception; it states: “Licensee may not falsely represent, expressly or impliedly, that Licensee is the original creator of a visual work that derives a substantial part of its artistic components from the Licensed Material.” Of the licenses reviewed, only iStockphoto’s license includes similar language to Getty’s, but the other terms do restrict the reselling of their images. Since the authors of the microstock images retain the copyrights, one can reasonably surmise that an illustration based on a stock image may not be copyrightable.  A safer course of action for illustrators is to use source material that is clearly in the public domain.

There is a downside to using microstock sites in general. Much of the imagery uploaded to the sites is trite, stereotypical, or simply poorly executed. (Stock photos were beautifully lampooned by the fake images created to mark the release of the film, “Unfinished Business.”) Microstock is also blamed for devaluing the illustration and photography professions by using an unsustainable business model that can’t support professionals.

The license agreements for the stock images sites are:
Getty Images

Below: highlighted portions of the Getty, iStockphoto, and Dreamstime licenses.

iStockPhoto license Getty Images license Dreamstime license

October Drawing Challenges for Illustrators

Posted by Rebecca Blake on September 23, 2015

For illustrators, October means more than autumn leaves, Halloween, and the return of pumpkin-spice-everything. Two drawing challenges extended during the month inspire artists to up their technical skills, as well has have a great deal of fun. For the rest of us, the month means we get to scroll through feeds of often beautiful (and beautifully ghoulish) artwork.

Inktober logoInktober is the better-known challenge. It was initiated by illustrator Jake Parker as a way to motivate him to increase his inking skills. The challenge is simple: artists create ink-based work (pencil under-drawing is permitted), and post it to their social media accounts and blogs with the hashtag #inktober. Parker posts the best of the work on the Inktober Facebook, Tmblr, Twitter, Instagram, and Pinterest accounts. The challenge encourages artists to post a new work daily, but many are only able to commit to every other day, or weekly posts. As Parker wrote, “INKtober is about growing and improving and forming positive habits, so the more you’re consistent the better.”

Drawolleen is a similar challenge with a different focus. Artist Brian Soria was inspired by Thing A Week, an exercise by musician Jonathon Coulter in which he posted weekly compositions to “keep his creative juices flowing.” Soria retooled the exercise to challenge himself to draw a monster every day during the month of October. He extended the challenge to the illustration community, with a calendar of daily themes such as “Day of the Dummy,” “Vampire Venesday,” and “Urban Legends.” Artists can contribute work in any medium, and post their images with #Drawlloween or #Drawlloween2015. Last year, Soria launched #fontober, a similar challenge for creepy hand-drawn lettering. Sadly the challenge didn’t get traction, and hasn’t issued this year.

Drawlloween logo

Orphan Works in Canada: Attempting Accountability

Posted by Rebecca Blake on September 02, 2015

The alarms sounded this summer about orphan works legislation, while unfounded (no such legislation is under consideration at this time), underscored the emotional resonance of the issue. Congress has long wanted to address the issue of orphan works, creative works whose author and copyright status are unknown. For a number of years, there has been a tremendous push by varied professions and industries – academics, museums, publishers, documentary filmmakers, the entertainment industry, and others – to pass legislation which would permit the use of orphan works without the fear of copyright infringement lawsuits. Creators are justifiably concerned that any legislation would weaken their copyright protection, or would enable businesses to use orphan works as a way of avoiding the cost of commissioning or licensing works.

Canada, however, does have in place a system that permits the use of orphan works, while attempting to protect the interests of creators. The Copyright Board of Canada has published a brochure outlining their system. A businesses or individual who desires to use an orphan work must first conduct a diligent search for the copyright holder, by contacting collective societies, doing Internet searches, and contacting publishers, libraries, museums, and educational institutions and ministries. Once a reasonable search has been conducted, the petitioner must fill out an application in writing which includes both a detailed description of the search for the copyright owner, as well as the intended use of the work.

Once the application is reviewed, and if the Board is satisfied that a diligent search was conducted for the copyright holder, it can issue a license and set a royalty fee for the usage. The license terms set the authorized use, such as number of copies, distribution, and expiration date. The royalty fee is not retained by the Board, but is distributed to whichever copyright collective society would represent the copyright holder. The collective societies may use the royalties in any way they see fit to benefit their members. However, if the copyright holder surfaces within five years after the expiration of the license, he or she is reimbursed the fee by the collective society.

To assist authors in monitoring what orphan works licenses have been granted, the Board’s website lists chronologically the licenses which have been issued going back to 1990. The site also lists the applications that have been denied, and gives the reason why. The system is somewhat limited, in that the license issued by the Board is only valid in Canada. However, the system enables those wishing to use orphan works for legitimate purposes to do so, while reducing any financial incentive to bypass illustrators and passing on to creators due compensation.

Screenshot from Copyright Board of Canada

Illustration Rep Changes Policy of Not Crediting Artists After Protest from Illustration Age

Posted by Rebecca Blake on August 24, 2015

Illustration Age logoIllustrator Thomas James reported on Illustration Age that he was startled to discover that artists representatives illozoo was not crediting their illustrators on their Instagram account (When an Art Rep Puts the Agency Before the Artist). In post after post showcasing beautiful illustration work, illozoo failed to credit the illustrators, instead referring to all as “illozoo illustrator.” Using his Illustration Age Instagram account, James asked why in the comments section, and got back the reply that “They are all illozoo artists. Anyone can see their work on our website.” In response, James posted the posted an illustrator’s name. That resulted in illozoo blocking the Illustration Age Instagram account.

The move wasn’t the most brilliant bit of PR on illozoo’s part; Illustration Age is one of the most respected illustration blogs, and has a huge following. (The Illustration Age Twitter account has over 27,000 followers alone.) However, the agency must have realized how poorly their Instagram practice reflected on them. James reported that subsequently, illozoo inserted the illustrator names into their Instagram posts (although Illustration Age remains blocked).  It’s a small but crucial victory; as James wrote, “If you’re an artist with an art rep (or are looking for one) ALWAYS be sure that the relationship is fair on both sides and that the agency respects you enough to say your name instead of only theirs.”

Recognizing the need to revisit best practices for illustrator reps, James followed up his illozoo article with a repost of illustrator Luc Latulippe’s list of 30 Things to Watch Out for in an Art Rep. The advice is comprehensive and commonsensical, and covers the basic questions an illustrator should ask an artists’ rep before committing to a relationship. It covers the ins and outs of publicity, fees, payment terms, and the working relationship, and will provide illustrators a clear picture of what to expect from their rep. In the comments beneath the article, illustrator Travis Foster summed up beautifully the key components of a successful illustrator/artists rep partnership: “Mutual respect and relationship... In a healthy relationship, both sides work hard to do their part and also trust each other in the process.”

Below: James’s screengrab of his exchange on the illozoo Instagram account. The Illustration Age comments have since been deleted by illozoo.

screengrab of the illozoo Instagram account

Mr. Shems Goes to Washington (well, New York, actually)

Posted by Advocacy Liaison on August 14, 2015

[To better understand what the First Sale Doctrine currently covers and how it has been interpreted in recent court cases, first read Lisa’s explanation in our Tools & Resources section.]


Subcommittee on Courts, Intellectual Property and the Internet
Daniel Patrick Moynihan United States Courthouse, New York, NY
by Ed Shems, former Boston Chapter President. Edited by Deborah Kantor.

The following article was originally published in Guild News, Fall 2014. Ed Shems, a Guild member, was asked to testify on behalf of illustrators on proposed changes to the First Sale Doctrine. The House Judiciary Committee is continuing hearings on revamping US Copyright Law, and recently issued invitations to individuals who have previously testified before the Committee. In light of that, we decided to republish Ed’s article describing his experience. Lisa Shaftel, Advocacy Chair, wrote a companion piece on First Sale Doctrine which you can read in our Tools and Resources.

“This isn’t scary!” wrote Lisa Shaftel in an e-mail to me at lunchtime on May 15, 2014. I was in the middle of two crushing deadlines that had me feeling a little bit overwhelmed. I wasn’t sure I was ready to read on.

Lisa, as the Advocacy liaison for the Graphic Artists Guild, handles issues such as copyright, licensing, business practices, and legal and legislative issues. In her e-mail, Lisa (along with Patricia McKiernan, the Guild’s Executive Director) asked me whether I might be interested in representing the Guild in a hearing having to do with the First Sale Doctrine… well, then I got lost.

OK, it wasn’t THAT complicated, but at first reading I thought the First Sale Doctrine had nothing to do with me and how I run my freelance illustration and graphic design business. I told her so in my response. Exactly three minutes after I replied to Lisa, I received an e-mail from the publisher of deadline number two that they were halting production and I should stop drawing. Suddenly I had some free time to hear Lisa out.

[To better understand what the First Sale Doctrine currently covers and how it has been interpreted in recent court cases, first read Lisa’s explanation.]

The House Subcommittee on Courts, Intellectual Property and the Internet had been holding hearings since January 2014, reviewing the current copyright law to determine if the different sections of the current law needed revising and/or updating. At issue for the hearing Lisa wanted me to testify at was extending the First Sale Doctrine to include copies of copyrighted works in digital format (separate from an authorized copy on storage media). Currently, the Doctrine allows a person who owns an authorized hard copy or phonorecord of a copyrighted work to sell or otherwise dispose of the work without the authority of the copyright owner. The right to distribute, however, ends once the owner has sold or disposed of that particular copy. The hearing was to examine the worst case scenarios if the First Sale Doctrine were extended to include digital works.

I was completely unaware about different hearings taking place, much less knowing how to formulate my thoughts about this particular topic, but when Lisa parenthetically mentioned that the subcommittee frequently changes their schedule and that nothing is set in stone (in other words, the hearing might not happen), that was the sort of thing I could agree to. I mean, what are the chances that I would end up in front of members of the House of Representatives? Lisa also pulled the ego card and referred to me as professional, smart, and articulate. At that point, I would have loaned her any sum of money if she had asked.

Ed Shems and Lisa Shaftel

Guild member Ed Shems and Advocacy Liaison Lisa Shaftel on the courtroom steps.

The first step for me was to get vetted by Sandra Aistars, Executive Director of the Copyright Alliance, who had suggested someone from the Graphic Artists Guild testify (the Guild is a member of the Copyright Alliance). Six days later we had a conference call for me to speak with Sandra and the two House Judiciary Committee Subcommittee counsels, Joe Keeley and Heather Sawyer, so they could hear what I had to say and make sure I was a good fit. If they both agreed, then I would receive an invitation to submit testimony and to appear in New York on June 2, 2014.

While we waited to find out whether I’d be invited, Sandra outlined some thoughts on what we needed to cover in our testimony (we would be able to submit our testimony whether or not I was invited to testify). And there was a lot to cover! Lisa and I spent hours on the phone writing and rewriting to sharpen the necessary points and make them as pertinent as possible.

Some of the key points:

How would the extension of the Doctrine to include digital works affect the way illustrators, photographers, designers, etc. price their work? Without the ability to license our work and charge for our work based on the clients’ actual needs, our small clients wouldn’t be able to afford us, and our large clients wouldn’t be willing to pay the costly “all rights” fees we would have to charge.

How would it affect the value of our work? We would in effect be forced into a work-for-hire world where our work could be resold, reused, buried, or revised beyond our control.

On May 23, I received an e-mail that began:

“Dear Mr. Shems,

Good afternoon. The Committee on the Judiciary’s Subcommittee on Courts, Intellectual Property and the Internet will hold a hearing entitled “First Sale Under Title 17” on June 2, 2014 at 9:30 a.m. in Ceremonial Courtroom 9C at the Daniel Patrick Moynihan United States Courthouse on 500 Pearl Street, New York, NY 10007.  Please see the attached PDF inviting you to testify at this hearing.”

And I was in. Yikes!

Now we had to get the testimony finalized so it could be submitted by the May 29 deadline. Lisa and Sandra did more fine-tuning, and Lisa also wrote a background prep of 1600 words describing each of the subcommittee members, their roles, and their likely stance on the topic of the First Sale Doctrine to help get me ready. I had a lot of reading to do and a lot of learning.

By now my friends had caught wind of my impending appearance in front of U.S. lawmakers (mentioning it on Facebook will do that!). To answer their questions, I had to make sure I understood fully what the issues were. It was helpful to see where the potholes in my knowledge were when speaking with friends, so I could try to get some tar and fill them.

On June 1, Lisa and I drove to New York City. The entire four-hour car ride was spent talking doctrine and copyright, digital first sale, and secondary markets. I wanted to fill my head with as much information as I could pull from Lisa. Until someone begins drilling USB ports into our noggins, the best way for me to do this was to ask a million questions and pose as many scenarios as I could imagine.

On the morning of the 2nd we left our hotel and made our way to the hearing. In the hall outside the courtroom we met Sandra Aistars and Tricia McKiernan, as well as Mickey Osterreicher of the National Press Photographers Association, Jan Constantine of the Authors Guild, and Roy Kaufman of the Copyright Clearance Center. Once the room was opened, we took our places.

The representatives took turns speaking about the subject at hand and then allowed each of the witnesses five minutes to give their abbreviated testimony. The majority read prepared words (including myself, one eye on the page and the other on the timer counting down in front of me), while a few spoke passionately off the cuff.

Testifiying before House Judiciary Committee

Witnesses testifying before the House Judiciary Committee, June 2, 2014

These are excerpts from my spoken testimony:

… Graphic artists, illustrators and photographers generally license, rather than sell, their work commercially. This allows us to provide our clients exactly the rights they need, and to set a price that fairly compensates for those rights, while allowing us to retain control over the copyright in our work for other purposes. …

… I am concerned, about proposals to expand the First Sale Doctrine in the digital world to allow reselling of creative works over the Internet. There is no such thing as a “used book” in the digital world.  Every copy of a file is as good as the original, and doesn’t degrade over time, so every digital book sold under the First Sale Doctrine would compete directly with my client’s sales—this means my clients will have fewer sales and fewer resources to devote to illustrate or design their works. As a result, I would likely have fewer clients and we might see a decline in the industry in which I make my living.

I am also concerned that infringement will become even harder to police than it is now. How will we know that all copies of the original file have been deleted before it has been sold or given away under a digital First Sale Doctrine?…

Following the testimonies was a Q and A as the Congressmen searched for deeper understanding and clarity. The Congressmen were not accustomed to having a creative present—usually we are represented by the companies that sell the products (music, books, etc.) in which our work appears. I fielded a couple of questions with answers mired in brevity about how the eradication of licensing would adversely affect my business and especially my clients. Ask me the same questions now, and I could go on and on…

The Congressmen were particularly interested in questioning John Ossenmacher, CEO of ReDigi, a (relatively) new marketplace for reselling digital rights. Had enough of Duran Duran’s Rio? ReDigi wants you to be able to resell it on their site, and the buyer would get a pristine digital CD at a lower cost. No longer using your copy of Adobe Photoshop? Should you be able to sell it? What sort of repercussions would this secondary market have on the primary market? And how about the ripple effect for the music, publishing, and software industries if their sales drop? Suddenly the consumer is left footing the skyrocketing bill, and the shrinking markets reduce opportunities for creative professionals to get work.

In my many years as a Guild member, advocacy was one area I never really plugged into. I was somewhat oblivious to this part of the Guild, content to know that somebody was keeping an eye on ‘things’ so I could run my freelance illustration and design business securely. But it was a real eye opener to suddenly come to understand that a change in copyright law was being considered that could so drastically affect the way creative professionals like me do business.

I have so much more appreciation for what the Guild does, especially that their proactive advocacy on behalf of creatives gets them invited to government hearings like this one!

I really appreciate the trust that Lisa, Tricia, and the Executive Committee of the Guild put in me. To say this was an awesome experience is putting it mildly. Terrifying, too. But it was an honor to have been able to participate in our government and to see how things (sort of) work. Even more incredible was the opportunity to get our testimony on the record for all to see and read. You can watch the hearing and read the testimony of all of the witnesses on the Judiciary Committee’s webpage. I especially urge you to read Greg Cram’s testimony to get an understanding of the issue as it relates to libraries.

Later that same month, I was accepted as a participant at the Copyright Green Paper Roundtable Workshop organized by the United States Patent and Trademark Office to continue the discussion and the input concerning the Doctrine. The setting was less formal, but the conversations continued with both sides laying out for the record how the changes to the Doctrine might adversely or positively affect their respective businesses. And once all the information has been gathered and the hearings have concluded, we will watch as the subcommittee takes the next step to decide where to proceed with the proposed changes.

Stay tuned because the outcome of the Congressional hearings, as well as the Patent and Trademark Office hearings, have the potential to change copyright law (not just the First Sale Doctrine section) as it is currently written, and that WILL affect how you run your business.

© 2014 Ed Shems

To watch a recording of the hearing or read the testimony of the witnesses, visit the hearing page on the Judiciary Committe’s microsite.

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