Taking Stock of Stock Photos
As a prelude to an upcoming cover design series that Nate will be posting soon, he first wanted to touch on the basics of using stock photos. Unless you’re doing original artwork you’ll be using stock photos, which means you need to understand the rules around them. Issues like photo licenses, model releases and usage agreements can all be a bit confusing, so the goal today is to shed a bit of light on how it all works.
Stock photos are our main source of cover art, and the vast majority of us are buying stock from a reputable source. The best site to use is totally subjective and beyond the scope of this post, but any reputable site will work.
Using a reputable stock site is important for a couple of reasons. First, they’re doing their diligence when it comes to photo ownership and model releases. For a number of years, I submitted stock photography to several sites, and almost all required a model release and a usage agreement (almost always combined). After all, stock sites stake their businesses on not violating copyright and not dealing with complaints from angry photo subjects.
This is the reason why so many stock sites are particularly unfriendly toward erotica (an FYI to those writing it and hoping to use stock photography for your covers). The usage agreement that a model signs is almost always boilerplate (and sometimes even provided by the stock site itself). It generally provides for extremely general use of a model’s likeness while simultaneously covering the caboose of the site. Stock sites don’t like dealing with complaints, and a contract does not prevent a lawsuit from an individual who finds their lives turned upside down by being the unwitting cover model for something completely filthy and potentially defamatory.
Model Releases and Usage Agreements
I’m going for generalities and most likely scenarios with this next section, since specific contracts can cover all sorts of crazy unlikely shenanigans. Also, please forgive the rehash of the basics.
Once a photograph is taken, the photographer “owns” it and all rights to it. That’s what copyright is. The model has no real control over the image and technically is not allowed to use it in any way without an agreement from the photographer. A model can’t even print a photo of himself or herself without the permission of the photographer. It’s even true with weddings! You can’t print photos from your own wedding unless you have a letter from your photographer (or they’ve transferred or shared the copyright). So if a model makes a copy of a photo or alters it in any way without permission, they’ve committed copyright infringement.
That’s important because the only control a model does have is via the usage agreement. Since the usage agreement is almost always combined with the model release, we’ll just talk about both.
The model release basically says this: “I’m So-and-So and I’m aware that there’s a Photographer here taking pictures of me and they’re not creeping on me or whatever. I’m cool with it, and I’m old enough to consent to having my photos taken if I damn well please.”
The usage agreement basically says this: “I know that the Photographer is either working for Someone or will be selling the photos to Someone in the future. I’m cool with that. I’m also cool with not being compensated in the event that my photos get used in advertising or promotion, and that any Affiliate of the Buyer of my photos can use them, too. I’m cool with the photos being used for ads for a political candidate I hate, douche commercials, or anything else the Buyer can possibly think of, and I agree not to flip out on the Photographer, the Buyer, or any Affiliates in the event that I don’t like how I am portrayed.”
Basically, the MR and the UA act as a waiver for an individual’s privacy and publicity rights, which you have even if you aren’t famous. You don’t need either document to take a photograph, but you need both if you’re going to publish a photograph commercially (like we would for a book cover, for example). If you publish a photograph without both the MR and the UA locked down, as the publisher you are solely liable for civil damages if you are in the US and the model takes offense to your usage, even if you have permission from the photographer and/or a valid photo license.
Paid Photo Licenses
There are a thousand ways to license photographs depending on their use, so today I’m really only going to generally touch on those we see most often. You should always read and abide by license agreements on photo sites. If you have questions, always ask. Too many people assume and too many people are wrong to do so.
Royalty Free: Basically, you’re free to use the photo in as many projects as you like. Print runs will have copy limits, but for websites and ebooks? Go nuts. The main drawback is that you and everyone else are using the same photo.
Rights Managed: Basically allows the exclusive use of a photo, but are generally time or print run limited. No one else can use the photo, but they’re very expensive to license, and you generally have to renew it every so often.
Copyright Transfer: It’s your party, and you can prevent other people from coming if you want to. Basically, it’s your image now, and you paid an arm and a damn leg for it.
If you’re dealing with a major site, these licenses usually mean you can do what you like with the image within reason, but again, some are very unfriendly toward erotica and you do not want to get your license revoked. I recommend sensible precautions: hide the identity of your models when possible and appropriate. The stock photo sites are covering their asses; you cover yours.
Creative Commons Licenses
CC licenses generally give you the right (with attribution) to use a photo for commercial purposes. If a CC photo is also NC (non-commercial), that means it is not licensed for commercial work, and CC0 means that the work is basically in the public domain.
Here are a couple of caveats about using CC images:
- You have no real way of knowing (unless you’re prepared to do some real legwork) if a MR and UA were secured, so even if the photographer licensed the image as CC, the model might not have waived his or her rights to privacy and compensation. If you use a photo on an erotica cover and there is no MR signed, you don’t even know if a model is eighteen. I don’t think I need to spell out the awful things that could potentially rain down on you in that event. Suffice to say that it won’t be fun.
- You have no way of knowing if a photo even belongs to the person licensing it. People “borrow” images and post them to sites like Flickr all the time, and license them as CC. You download the photo and use it on a book cover. Now you have a pissed-off photographer on your hands, and you’re on the hook for copyright infringement.
Take my advice: buy stock and do not use CC images. If cash flow is an issue, understand that self-publishing is a business like any other—seed money is sometimes required (but fortunately in our case, not a whole heck of a lot). And look at the bright side; buying stock supports a creative not unlike yourself!
I hope this helps to clear the cobwebs. As always, if you have any questions, feel free to post a comment. Otherwise, if you’re ready to get started on using your new stock art, check out part one of our cover design series!