I know Google image search is not a free-for-all to grab any image needed. However, many, many, many clients don’t grasp this concept and often request or send images they’d like to use in a design or product which are clearly a violation of copyrights.
I recently had a client send an image to me which, frankly, seemed too well done and too specific for the client to be sending. My thought was, based on the clients business, it was doubtful they paid someone to create the illustration depicted in the image the sent.
So, I did a little reverse Google image searching and found the original, which actually won an award for illustration a few years ago. I immediately knew the image was a violation of copyrights and threw it away. I expressed the violation to the client only to be met with “Do a Google image search for ‘XXX XXX XXX’ and you’ll see everyone is using it. Please use the image.”
When designing a piece and a client requests the use of an image they “found”, and it is clear it’s a violation of copyrights, what should a designer do?
I realize this is a legal question but… Can the designer include a clause in a contract to protect themselves from liability due to these requests? Is this effective?
In some cases, clients are fully aware that they may be infringing. However, in their words… “The worse that can happen is we get a ‘cease and desist’ letter. We’ll remove it then.” My ethics cringe at this. How should this be approached?
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I’ve never run into this exact problem but if a client sends me a logo from another company I email them back asking if they have written permission to use said logo in their marketing. If they say yes then that is sufficient for me. To word it nicely I go with something along the lines of:
I see you’d like Acme Co.’s logo included in your artwork, do you have any sort of authorization from them to include it? Just as I wouldn’t include your company’s logo in someone else’s artwork without checking with you first, I have to do the same for them.
Since this is more about a copyright image off of Google I would probably take a similar approach.
I remember seeing this artwork back when it was published in such and such (or when it won such and such award). I’m not familiar with it being released under a royalty-free license though. Do you know the artist or something.
Then when they reply they don’t, follow up with more legalese.
If you don’t know them then do you have the rights to use it? Otherwise it’s in mine, and really your best interest not to.
If they persist after that point:
I’m sorry but I cannot knowingly help you commit copyright infringement. It goes against everything I stand for as a designer. If you can get permission to use it then I’m happy to proceed, or if you want to use a different image that is royalty-free.
In my contracts I have clauses to the effect of “Client promises that all artwork provided for Designer is owned by Client, or Client has permission from the owner to use it. If Client is sued for copyright violation, Client will state that it was not Designer’s fault.”
Whether it’s effective, well, I’m not a lawyer, but this at least specifies that you’re putting the burden of proof on the client, and the client is signing it.
I would stonewall along the lines of Ryan’s approach. “Other firms may be using [image]. I have no way of knowing if those other firms received permission from the artist. Without that signed permission, I legally cannot use it in your work. This is for my protection and for yours.”
If the client persisted, I’d either fire the client or let the client fire me. It’s not worth my livelihood.
You say “no, sorry, I can not violate [insert your country here] Copyright Law. I’d be glad to help you license artwork legally.”
You should also have a clause in your contracts along the lines of “all artwork provided by the client shall be artwork the client has full rights to reproduce. Designer will not be responsible for any artwork that was provided by the client”
It should also be mentioned that if the client says:
Do a Google image search for ‘XXX XXX XXX’ and you’ll see everyone is using it
…well, law aside, that’s a perfect reason NOT to do it! I’d say “To make your business stand out, I suggest we not copy what every other business is doing”
One could solve the conflict by changing the perspective:
See the task “use this image” as implying “take care of the license”
The client proposes to use an image, and it looks like he has not acquired the permission to use it. Ok, no problem, using an image involves handling the license, he did not yet do that, to it’s part of your task:
- confirm with the client permission has not been acquired, if unsure
- this may be the right moment to give a hint that a payment may be needed, but you do not need a clear answer at this point
- find out how to get the license, and prepare payment procedures
- ask the client whether he accepts the price (which implies the question of whether he anticipates making payment at all)
- this is the final point where the client has to understand the issue, and possibly start a discussion for other alternatives
- ask the client to pay, or confirm he will pay for it
- use the image
It helps to be – or pretend to be – absolutely convinced handling the license is part of the overall task, very obviously. Ideally, you show the mind set that it is clearly a question of who handles the license, and not at all a question of whether it will be handled.
Even if the client finally insists that you use an image without a license, you should be in a good position for that discussion. He would need to explain why you should “not do your work correctly”, and it is implied and obvious that he is requesting something that is wrong in some way.
In this conversation, you could, instead of accepting his insistence, clearly demand that he should provide the image himself – it’s not the kind of work you offer to do for a client. Even if that is used only as a rhetorical element before finally accepting, it should get the message across even more clearly.
As Lauren Ipsum pointed out, an indemnity clause is a must have in every contract. You will rarely source all content so you’re always taking a gamble.
That said, the clause will offer little protection if you knowingly violate intellectual property. If you show negligence and try to point at your contract in court you’re going to get nailed. Maybe not every time but it’s not worth the risk.
Reminds me of one situation I had. I was working for the Dean’s office, and the head of a new program wanted political images of U.S. presidents. The head of the department had earlier requested that the office pay for royalty-free images, and the request was denied.
I had earlier run through over a dozen public domain image galleries and pulled the best I could pull (from slim pickings) and made the best I could pull from there. But then the new department head said he had easily found royalty free images and he expected me to use them.
I explained, very simply, that “royalty free” means “lump sum payment”, as opposed to royalties per usage, but it does mean “payment”, not “gratis” or “no payment needed.” He said OK, but could I please use some royalty free images? He said OK without revising his expectation that I use royalty free images without anyone at the school paying for them, and made it clear that I was still delegated to use “royalty free” images without the Dean’s office or anyone else at the school paying for them.
In that case I was lucky. He was supposed to negotiate with me exclusively through my boss, and my boss understood perfectly that I had searched through public domain image banks and already kept all the best images that I could find, and that the royalty free images were on a lump sum payment model only, and none of the ones he wanted me to use were gratis.
If I met the situation today, I’d say, rather than a you-message, “I don’t care how reasonable you think it is. I don’t feel comfortable, and I know I could go to jail.” If I try to explain “I could go to jail” and a reasonable effort to explain matters failed, I would decide that it’s not worth working with someone who has continued to insist I do X after I have explained, “I could go to jail.”
I know that clients are not supposed to look out for our interests the way we look out for theirs, but a client that knowingly insists that you do something that could land you in jail can’t be dropped too quickly.
First identify the copyright holder of the media in question. This can be easy for published material with its original credits on the packaging, or it can take some detective work through Google’s image searches to smoke that party out. Wikipedia can be helpful in ascertaining the copyright status of images it displays, and many have fallen into the public domain (though I’d double-check that from other sources to make sure). For protected work, contact the publisher and ask to speak with their licensing department. They can negotiate the fee for you, which will depend on a lot of factors related to how prominently the work will appear in public media and for how long. In cases where you were mistaken and the property belongs instead to someone else, they can help you locate that other party.
Doing this legally and above-board is best for everyone around. The images will invariably be of finer quality (the owners likely have cleaner, higher-resolution versions than any you’ll find online) and confer greater prestige to your production than would second- or third-tier material you could scrounge up for free, plus everyone involved will sleep soundly at night. If you’re lucky you’ll stumble onto something magnificent and perfect for your project from an obscure artist that can be licensed very cheaply, your production will enjoy success and wide exposure, and that excitement [not to mention marketability] will then rub off on you, the art, its copyright holder, and its artist… raising all the boats in the water, so to speak.
People I worked with once wanted to use a copyrighted image. I demonstrated leadership by informing them that we were absolutely not going to use it, and then I found a suitable, if less artsy, public-domain replacement.
Later, I created a desktop icon for us to use so that we wouldn’t have to choose between a poor free one or a slightly better copyrighted one. The one I created was custom suited for our needs, and in my opinion, actually the best of all other options.
This was not a one-shot deal, but rather part of my overall strategy of showing preference for doing the right thing rather than doing the easy thing.
I think standing up for these sorts of issues is good for your career, and bad for the career of those who want to oppose you.