The bad news is that not every Web designer is also great photographers and artists. Even worse, those who are can’t always take or create all of the images they need for a layout.

The good news is that there is are millions of stock photo works created for the use in various Web site layouts as well as to go along side content. These works, usually, are more than adequate to fill that gap quickly and cheaply.

The other bad news though is that including stock photography in a theme that you wish to let others download is a dangerous move and may wind up creating legal trouble for the designer and user alike. Even worse, several stock photo agencies have been especially aggressive in this area, hitting up unintentional infringers for thousands of dollars in damages.

Stock photos and Web templates are a dangerous combination and one that must be used carefully and wisely.

The Problem

Let’s take a look at a scenario to illustrate why these two things do not go hand-in-hand as neatly as it would seem.

1. A designer is building a Web site template, either to sell on their site or to give away for free. He needs an image for the header and spends a few dollars on a Web-resolution stock image that looks great.
2. He finishes the theme and publishes it on his site.
3. Several users all download/purchase the theme and use it on their sites, complete with the header image.
4. Users are sent threatening letters from stock photo agency claiming that they are infringing their rights.
5. Users then point the designer, who then receives another letter claiming he is in violation of the license agreement.

The reason that this can (and regularly does) happen is because there are two legal issues with using stock photos in templates for general public consumption. The first is that most stock photo licenses forbid redistributing the image as part of a template, especially reselling it. An image is usually for use at the site it is sold for and does not give the purchaser the right to redistribute it as part of a package, essentially giving everyone who uses the theme an implied license to put it on their site for free or as part of the cost of the theme.

However, the more scary aspect is that the people using the theme, who often assume they have the right to use the theme out of the box, don’t have a license to use the image and become unwitting unlicensed users of the photo.

In short, everyone who downloads the theme, though they think they are being honest and complying with the law, become unwitting infringers. Though this fits the definition of innocent infringement, this hasn’t stopped many from being subjected to takedown notices, threatening letters and, in many cases, multi-thousand dollar settlement demands.

With little doubt, this is easily one of, if not the, most common ways a law-abiding Webmaster can find themselves on the wrong end of a copyright dispute. However, it is an issue that can easily be avoided.

Tips for Designers

If you’re a designer looking to distribute themes and/or templates, consider a few general guidelines.

1. Favor Public Domain/CC Works: Public domain works are ideal as no license or compliance is needed at all. CC licensed works, however, can also be useful since the license is universal. However, you will have to comply with the image’s license and put precautions to ensure that those who use the theme do so as well, especially if the image is licensed only for non-commercial use.
2. Clearly Source Used Images: Any content you use from others should be sourced clearly. A readme.txt file may be a good idea for this information. This is to let users know where images, JavaScripts, etc. came from and whether they can abide by the same license terms.
3. Read Licenses Carefully: Some images are available for use in themes or that right can be purchased for an additional fee. If you can find images that are, you can use them safely.
4. Work with Photographers and Artists Directly: Finally, if you’re making a theme that is for sale and want to be completely certain of the authenticity of the work, you will likely be better off working directly with an artist or photographer (or just creating the images yourself). This lets you draft the contract that you need and offers assurances of the work’s originality, preventing problems for you and others down the road.

However, designers aren’t the only ones who have to worry about these issues, the users of their templates and themes need to take precautions as well.

Tips for Users

Though it is tempting to download a theme and place it on your site without any thought to copyright, especially considering you downloaded it from a legal source, it is important to take a few minutes to make sure everything is ok.

1. Check the Licensing: When downloading a new theme, take a few moments to make sure that the designer followed the license on all of the images used and that you are willing to as well. If you are unsure where an image came from, you may be able to source it using Tineye but, if there is no clear sourcing, you’re most likely best avoiding the image. In short, ssume nothing and do not trust your designer to have done the work for you.
2. Replace Artwork: If you have to replace images, your own work is best, followed by works in the public domain and then CC-licensed images. However, since you are using the image on just your site, and not distributing it in the theme, you certainly can purchase stock photography cheaply and legally as well.
3. Focus on Larger Images: Finally, though a theme may contain many hundreds of images, it is the larger, more artistic ones that are most likely to become problems. Bullets, spacers and other design elements can be copyrighted in many cases and may become the subject of a dispute, most seem to stem from photographs used within the theme and other artistic works that are more than functional elements. The larger the image and the more work that went into it, the more careful you need to be in order to check the licensing.

Sadly, this advice also goes for those who purchase custom themes from designers. Though most designers are very good about ensuring that their themes contain nothing but legal content, I’ve heard many horror stories of others who have paid money to a designer only to find that many of the images were infringing.

The best thing to do is to trust nothing save your own research. The designer should make it as easy as possible to do that research, but you still have to make sure everything in on the right side of the law before hitting “publish”.

Bottom Line

The extreme enforcement by some stock photo agencies, in particular Getty Images, combined with the tendency for many Web designers to use stock photos in their themes has made for a recipe that has caused a lot of heartbreak and headache. Many people who thought they were using a legitimate theme have been caught up in this particularly nasty dragnet.

Designers need to be smart about the images they use in their work and users need to be less trusting of the content they download or purchase.

It is sad and frustrating, but a fact of the current copyright climate when it comes to stock images.

However, it seems to be working against the stock photo industry in many ways. More and more people are avoiding the use of such sites, in favor of CC-licensed works, and iStockPhoto recently decided to offer its customers assurances by providing a free $10,000 guarantee on all images bought.

It is clear that they are feeling the heat, but it is unclear if they see that they are the ones who lit the fire.

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