As part of this, I have made it one of my focuses to help content creators find good, legal content to use on their sites. So much so that I made it the focus of my talk at WordCamp Dallas 2009.

One of the recommendations I have repeatedly made was the use of Stock.xchng for free stock images. I continued with this recommendation even after Getty purchased Stock.xchng, even though the purchase made me uneasy.

Though I still think Stock.xchng is a great site for its purpose, it no longer is my favorite tool or my first recommendation. Instead, I’m not now putting my focus on Morguefile, a free stock photo site that is simply a better alternative for most bloggers and other content creators.

Specifically, there are three reasons why I made this choice:

1. Better Licensing: The licensing on Stock.xchng is not longer consistent and many photographers demand additional steps be taken before using an image. While this is their right, the lack of consistent licensing makes it much more difficult to find images. This was a problem I talked about in March and Morguefile’s one license just works better.
2. More Tools: Morguefile makes it possible to resize and crop images on the site, making it faster to get images in the size/format needed.
3. Better Search: Though I really can’t pinpoint the reason for this, the search in Morguefile seems to work better for me. Despite the fact it has a smaller library than Stock.xchng, I seem to get more usable and relevant results with each search.

This is not to say that Morguefile is perfect. It does have a smaller library than Stock.xchng, about 250,000 images to their 400,000 (Morguefile numbers based on not filtering image results) and the ads can be a bit aggressive at times, even though I find them less annoying than the deceptive “premium listings” on Stock.xchng.

For me, Morguefile is now my default stock image site and Stock.xchng will be the backup. It will also be my default recommendation.

That being said, everyone should use what works best for them, but I think Morguefile is the one that will best suit most people I work with.

My only regret is not starting sooner and not taking a closer look at Morguefile after receiving several recommendations to try it. To those of you who did suggest it previously, I apologize for my stubbornness.

I won’t be so daft about recommendations in the future.

On that front, I want to open the door to anyone with recommendations for services to license or find content to use. I’ve covered many here but I know there are others I’m not aware of so, if you have one in mind, please feel free to drop me a line below.

Here’s a seemingly simple question: Which of the following activities is most likely to get you a threatening letter for copyright infringement? Pirating a movie? Sharing a song? Or Posting a stock photo to your site?

Since the RIAA has stopped its litigation campaign, the odds of being sued for one night of casual, or even less-than-casual music sharing is almost nil. The same is true for movie file sharing. Though the U.S. Copyright Group has ramped a very large litigation campaign it only targets a small subset of movies, largely independent films such as “The Hurt Locker” and even then can only target a small percentage of the potential sharers.

Surprisingly, your best chance of getting hit with a copyright infringement demand letter, almost certainly, is for posting stock photos to your blog or website. Though it may seem like a relatively harmless thing, stock image companies have been especially aggressive in dealing with copyright infringement and have mounted a campaign that has lasted almost a decade against those who use their images without permission.

Some call this copyright extortion, others good enforcement. But it’s a campaign that has largely flown under the radar of most in copyright circles and one that has barely been mentioned in the press.

However, it is a campaign all bloggers and webmasters need to be aware of as it is one that could very easily come back to bite them.

How it Works

Simply put, image matching technology has moved forward a great deal in the last five years and the early adopters of it were primarily stock photo and image companies. However, rather than simply issuing takedown notices or cease and desist letters, many of the companies, most prominently Getty Images, have been sending out demand letters, telling infringers they have to pay as much as $1,000 or more per image.

Unlike the RIAA and the U.S. Copyright Group cases, there are almost no lawsuits filed in these cases. This means there is no public record other than with the handful of cases that are discussed publicly or that make it to court. There’s also no press machine promoting these cases, unlike with the RIAA, so there is no information about who is being targeted and how many letters are being sent out.

This has made gathering statistics on the matter almost impossible. One law firm has handled 300 cases but a more complete estimate from the L.A. Times, says there are “tens of thousands” of letters per year.

Since the campaign has been ongoing since at least 2006, it is very likely that the number of letters sent over stock images exceeds the number of music and movie industry lawsuits combined (35,000 for the RIAA and 14,000 to date for the U.S. Copyright Group) (Note: The MPAA primarily targets the sites behind file sharing, not individuals, though the MPAA did file a small number of suits against individuals, also, the U.S. Copyright Group may be making a bid to leapfrog the stock photo industry in a few weeks.)

But despite the volume, the campaign has gone largely unnoticed. Few press releases have discussed the letters and almost no media coverage of the campaign.

How has this gone unnoticed? The answer is actually fairly simple.

The Big Difference

Why is it stock photo companies can send small companies and individuals thousands of threatening letters with almost no backlash but the RIAA and MPAA has a news story published every time they file even just a few hundred? There are two reasons.

First, the movie and record studios widely publicized their cases. Most would say that their efforts were as much about publicity and attention as actually earning any money. Judging from the reported figures in the RIAA cases, they were far from profitable. However, the stock photo companies have been very quiet about their efforts. Getty Images, for example, does not have a single press release on the topic on their site (at least not that I could find going back to 2000).

The second, and more important reason is the way in which the two proceed. When the movie or record studios want to target a file-sharer, they need to first get that person’s information as all they usually have is their IP address. That requires filing a “John Doe” lawsuit to get a subpeona from the ISP.

However, with the stock photo companies, most sites, especially businesses, are more than happy to put all of the needed contact information on their site or have it in their whois information. This lets the stock photo companies skip the expense and publicity of a lawsuit and go straight to a private demand letter. This makes the process much less expensive and much less public.

It also makes it much more difficult to track these cases and see what happens with them. We know a few make it to court though most seem to be settled before that point (likely after some negotiation) and others are dropped for various reasons.

Unfortunately, most of the evidence there is anecdotal and the nature of the campaign makes gathering real statistics virtually impossible.

Problems With the Campaign

The same as the other content industry’s massive anti-piracy campaigns sometimes went astray, so too has the stock photo one.

Part of the problem is that at least many of the threatening letters have been sent to companies who either used professional design firms or thought they had acquired the rights from a third party. While this may not excuse the infringement in court, it certainly affects the damages likely to be awarded and generates sympathy for the target.

This actually played a key role in a recent court decision on the subject (see left-hand side) where MasterFile, one of the more aggressive agencies, filed suit against a small cycling tour company for use of several of their images. MasterFile won the suit but it was a Pyrrhic victory that saw them awarded just $1,120, less than their initial demands, and spend over $4,000 in legal fees.

However, other issues have been repeatedly raised with these cases including whether the work has been properly registered with the U.S. Copyright Office and even if the agency has the authority to act on behalf of the content.

But more than anything, the campaign has been controversial. Some have referred to it as “legalized extortion” and a simple search for “Getty Letter” turns up dozens of sites where recipients are complaining about the threats.

On the other hand, a representatives from the industry put things in a different light. One such representative from Getty once said that, “The thing we try to do is just have a conversation with the customer. We make them aware that it has happened and that they need to look at addressing it and making sure it’s licensed. It goes into writing at the point when there’s denial of use or people saying they didn’t know.”

In my personal experience though, most people are blindsided by these demand letters. I’ve been approached by half a dozen people who have been given one of these letters, none received any warning.

By comparison, no one has asked me for help with RIAA or MPAA lawsuit threats.

What is Being Done

There are several things that are being done to address these issues. For one, attorneys Matthew Chan & Oscar Michelen (Correction: Matthew Chan is not an attorney though Oscar Michelen is. Chan is, however, the founder of the site in question. My apologies for the confusion.) have set up a site and offer reduced-rate legal counsel for those who receive these letters.

However, the stock photo industry has also been contributing some to mitigating this issue. A group of the major agencies launched the site StockPhotoRights to inform consumers about how to license photos, though it also cautions users against using CC-licensed images.

Beyond that though, it is crucial for webmasters and site owners to be aware of this campaign and take steps to avoid getting caught in it. This means, first and foremost, ensuring that you properly license all of the images you use and that, if you have a design firm build a site for you, that you are sure they have clearance on all of the images they use. Remember, even if you didn’t put the image on your site, you can still be held liable.

Corbis’s senior counsel, Claire Keeley, once said that “My goal is to make my job obsolete. The ideal scenario is we have businesses properly licensing these images through sales channels.”

Unfortunately though, it seems as if there is no end in sight and with more companies using this method for resolving copyright disputes and increasing international expansion, the number of letters sent seems to be poised to grow.

An Alternative

When I was first brought on at CopyByte, the copyright and plagiarism consulting firm I now own, I was brought in to do the same kind of enforcement that Getty Images and others do, but for written works.

However, rather than send countless threatening letters demanding thousands of dollars in damages, we took a different approach. We sent a “soft” cease and desist letter with a sales pitch inviting people to become paying customers. Many signed up. With the nature of the client’s business this was more valuable over the long term than a quick settlement.

Though the project ended, it was a success and it was done without damaging the client’s reputation or causing any ill feelings. In fact, despite sending hundreds of letters, only one recipient was upset in any appreciable way and compliance was extremely high. Many were actively grateful for the way the situation was handled and signed up because of that.

This exact system isn’t right for every industry or every business, and it probably isn’t right for the stock photo industry, but it shows that there are other solutions to sending threats and demanding settlements.

One just has to be willing to experiment to find the correct approach.

Bottom Line

If you run a website, whether for your business or just a blog, you need to be careful about how you obtain the images you use. There are many good, free and legal ways to get images for your site, including one owned by Getty, but you need to be careful about how you use them.

Though it is unclear how effective this campaign has been, there is little doubt that it has been widespread and has impacted thousands of webmasters of all stripes. Webmasters would be wise to keep this in mind whenever they reach for images to use on their site.

Because even if the threat is dismissed or dropped without payment, it is still a cause of fear and stress until the matter is resolved and is something no one wants to endure.

Fortunately, it is a fairly simple problem, just requiring a little more attention to where your images come from.

Disclosure: I recently gave a webinar for Digimarc, a company whose detection technology is commonly used for this type of enforcement though, obviously, not exclusively.

In a rare moment of cooperation between the various stock photo agencies, Getty Images, Corbis and Shutterstock have combined their efforts to build a site they hope will educate users about licensing images and the legal complexities of doing so.

The site, stockphotorights.com, highlights the some of the legal dangers that come from licensing photos for your site beyond copyright including privacy issues (model releases) trademark issues and infringement of designs.

The site’s solution to these potential problems is to license images from stock agencies that provide indemnification, or legal protection against claims of infringement over use of their images. This is something that some of the major microstock photo agencies have been doing since late last year.

To be clear, these issues do happen. The Virgin Mobile case, which saw the company use a CC-licensed image of a girl in an ad campaign only to be hit with a privacy claim by the parents of the girl in the image, is an excellent illustration of the problem.

However, they can also be avoided in other ways, such as not using images that contain pictures of recognizable people or trademarked logos not protected under fair use. However, those options are not discussed in the video, in large part because this site, though informational, is aimed at encouraging users to choose commercially licensed stock photography.

Still, the site is a good overview of some of the issues that do arise when licensing images for your site and it is well worth taking the three minutes to watch the video and think about how these problems could impact you.

On that note, I’ve embedded a copy of the video below.

In addition to the video, the site also has a blog with updates on image licensing issues, a list of photography agencies and links to other, related sites, a good list, even if PT is not on it.

In short, if you deal with image licensing at all, you will probably want to watch the video and bookmark this site for future reference. It is almost certainly something you will want to come back to.

As previously covered, image matching company PicScout recently launched its Image IRC, a database of fingerprinted images with licensing data that is publicly accessible, and ImageExchange, a user-facing program that accesses the Image IRC and finds matched images on the Web.

Currently, ImageExchange is only available as a Firefox extension (though other extensions are planned) and is in the very early stages of public testing. Aimed mostly at buyers of stock images, such as designers, ImageExchange and the Image IRC currently have access to millions of images, including from many of the largest microstock and stock photo agencies.

With all of that in mind, I wanted to take a look and see how well ImageExchange performed both to see what it was doing well and to see what might need improvement in later versions.

Here’s a look at my experience with the extension and what my early impressions are.

The Experiment

For my limited test I decided to simulate what a potential searcher for stock photos might do, I visited Google Image Search and experimented with different search terms to see how many images were found and to make notes about the usefulness of the extension.

All in all, I conducted 35 searches. The first 25 were for a variety of semi-random terms a stock photo searcher might look for, ranging from vague to very specific. Five searches were for terms in the first 25 but with the words “stock photo” added. The final five were for the same terms but with the words “clip art” added.

From there, I checked the first three pages of Google and counted how many matches were found. The results are below (click to enlarge):

Matching

As you can see in the chart, the matching isn’t exactly going to blow anyone away. Many of the searches produced no results with Google Image Search, in my test, showing 18 results per page, the highest any one search found on one page was 6, or 1/3. None generated more than 17 matches out of the 54 total images.

That being said, the results were interesting. The more specific the search, the better ImageExchange did. Searches with “stock photo” added also did better most of the time.

However, to be clear, when it was struggling to find matches it isn’t because ImageExchange wasn’t matching images correctly, but because the top pages within Google were filled with user-generated content and other images that aren’t indexed at this time. That will likely change as the database grows.

On that note, I fully expect these numbers to go up in the coming weeks in months as PicScout adds both more stock image providers, new sources of user-generated content and the existing sources continue to add images.

In short, the matching isn’t great at this time but it shows a lot of promise and, considering that it is a free service that runs in the background, it is still a worthwhile install.

Usability

ImageExchange is pretty much a “set and forget” extension. The installation is nothing special if you’re familar with Firefox extensions and, as you can see in the image to the right, the settings are pretty basic, the most important being the ability to manually search for just the images you ask.

My biggest gripe on the usability front is that the “i” that indicates whether an image is a match or not is a bit difficult to see, though it would be easier in regular Web surfing, it got lost in Google Image Search’s already cluttered results pages. I had to be careful to go through image by image when counting to make sure I didn’t miss any.

However, once clicked, the “i” did a good job directing me to the correct licensing page. In a sample of the found images, I never had an issue finding the correct licensor and understanding how to obtain the image.

All things considered, it’s a simple extension that seems to work well and not require any real intervention from the user. It’s a “set and forget” application that does its job well.

Speed

I wouldn’t call ImageExchange lightning fast but I wouldn’t call it slow either. On my computer, it took about 4-5 seconds after the page loaded to complete its matching.

The timeframe isn’t outrageous but there is no clear indication as to when ImageExchange is done working other than the icon in the toolbar. Since many of the “i”s loaded before ImageExchange had finished checking all of the images, it was very easy to try and click to the next page too soon sometimes.

The time wasn’t nearly as long during regular Web surfing. It is only during these images searches that the delay was as noticeable as it was.

Potential Uses

Considering that ImageExchange is both zero-cost and zero-thought, there’s really no reason not to install it. Yes, it has flaws but they are all ones that can either be addressed or are being addressed now. It is important to note though that, right now now, it is not aimed at laypeople, but at buyers of stock images, a crowd that will be well-served by this service.

My hope is that the service is able to grow in both scope and usability to reach out to a broader market, something PicScout has said they are working on. It would be nice to see average bloggers and Web designers using this tool to find licensable images on the Web as they surf.

It certainly is an improvement over those who use Google Images as a clip art library.

Bottom Line

The $10,000 question is whether or not you should install this extension. To that, the answer depends on what you intend to do with it. If you’re a buyer of stock images or routinely do searches for reusable photos, the answer is probably “Yes”. It’s free, easy and, even though it isn’t as effective as it could be, it works well enough to probably help you find what you need.

On the other hand, if you’re a blogger or someone that only looks for images more casually, especially if you’re looking for ones for free use, it’s not the right tool yet. That being said, do keep an eye on it as improvements could easily change that.

All in all, ImageExchange is really a no-cost service to use and, if you’re the type of user who might gain any benefit from it, I would consider signing up to use it. Though there are imperfections, they don’t outweigh the benefits and they especially do not outweigh the potential.

When I work with visual artists, one of the most common complaints that I hear is that too many people treat Google Image Search as a clip art or stock photography library, taking and using works without permission, assuming that it is ok.

Yesterday, I was beta testing the ImageExchange Firefox plugin (full report should be tomorrow) and part of it was entering a lot of queries into Google Images to see how well the system works.

At one point I had an issue with trying to determine if “clipart” or “clip art” would produce more results so I punched both into Google’s regular search engine, below is the ad that came up.

In short, Google was advertising its image search feature as a means to find “Clipart Pictures”, even above Clipart.com.

In Google’s defense, it appears to have been a one-time thing. I haven’t been able to replicate it today. Also, it is almost certainly an automatically-generated ad based on keywords. Still, the fact that Google could connect Google Image Search with clip art, even though it is made up of images from all over the Web, most of which they do not have the copyright in, is disconcerting.

Update 12/16: Even though I haven’t been able to replicate it today, artist Meredith Dillman was able to get it to work last night following my original tweet on the topic. It appears that it wasn’t just me.

Granted, the ImageExchange extension, which I am testing aims to make Google Images (as well as general Web browsing) useful for stock photo searches, by itself Google Image Search has no means to license images, only point to sites that can (such as iStockPhoto, etc.)

To be clear, I don’t think that Google thinks of its image search product as a clip art gallery and it seems that this was a mistake and one that has already been fixed. But I would also argue that Google hasn’t done a great deal to dispel the idea either. Other than a vague “Image may be subject to copyright” warning in the frame above the clicked link, there isn’t much notice that the images aren’t for reuse without permission, especially for a layperson.

To make matters even worse, their CC-licensed search, which might actually be useful for finding clip art and stock photos, is buried at the bottom of their “Advanced Options“.

While it isn’t Google’s responsibility to make sure that everyone who uses its image search does so properly, it would be nice to see Google make it easier and more effective for what is almost certainly one of its most commons uses. This would help both artists and those seeking to use art at the same time.

That and not advertising it as a source for clip art would also be good idea…

In late October, stock photo agency Shutterstock, announced that it would provide its customers with legal indemnification for all works purchased through their service. This means that, should a photo purchased be fradulent and the purchaser is sued or threatened, iStock photo will cover up to $10,000 in damages and legal fees.

This follows about a month after iStockPhoto, which is owned by Getty Images, announced its plan to offer a similar indemnification service.

Obviously this is becoming a trend in the microstock community as companies begin to offer nervous buyers a guarantee that the images they are purchasing are legitimate and backing up that guarantee with money. Though, as I pointed out in my previous post, the money might not be enough to cover some lawsuits, it would be enough for most cases, especially if the matter were resolved quickly.

But all of this begs a question, why is this microstock industry suddenly taking up the banner of indemnification? I decided to pose the question directly to Shutterstock and see what they had to say.

Peace of Mind

In my earlier article on iStockPhoto, I hypothesized that the current legal climate surrounding stock photography, has made buyers uneasy about purchasing even from established stock photo agencies. The issue comes in part from unscrupulous agencies that do not adequate vet work and aggressive legal action, in particular from Getty images, against those who use their images with a proper license.

Shutterstock, however, seemed to downplay that. Saying that they had been looking into providing protection for “some time” and that it was aimed more at providing customers peace of mind than addressing any specific concern. According to their representative, the addition of the indemnification is also part of a larger shift in the stock photography community, including the shift to royalty-free licensing and greater use on the Web, both of which have had sharp impacts on the terms of use and customer needs.

According to Shutterstock, issues with their images are “exceedingly rare” and the most common issue involves a customer using an image in a way that is not compliant with their terms of service. For that reason, they recommend that users always read the terms of use closely when buying images and always attempt to buy from a reputable agency. To keep other kinds of infringement to a minimum, Shutterstock has a stringent review policy for new artists and requires both a legally-binding contract from the artist as well as model releases on all recognizable people, to prevent privacy issues from arising as well.

But as much sense as it makes that these legal changes are coming from larger changes in the industry, the fact that both iStockPhoto and Shutterstock saw fit to offer similar plans so close together, the biggest difference being that iStockPhoto offers $10,000 per file where Shutterstock is $10,000 per user, still raises eyebrows.

A Different Theory

Lee Torrens, who writes for the site Microstock Diaries, a blog for photographers selling their work on stock photo sites, has a different theory. According to Torrens, the move is likely a strike at Vivozoom, a stock photography agency that opened earlier this year, was the first to offer such indemnifications to its buyers, up to $25,000 per case. Vivozoom was built from the ground up to fill what it saw was a need in the industry.

Now the two largest players have fallen suit and offered their own indemnification plans, possibly a sign that Vivozoom struck a nerve with the industry.

Torrens also predicts that, most likely, we will see other photo agencies, including smaller ones, offer similar plans now that both iStockPhoto and Shutterstock have done so.

It will be interesting to see what is the case.

My Thoughts

In the past year alone, one stock photography agency has opened up with the specific benefit of offering indemnifcation and the two leaders have followed suit with their own, albeit smaller, plans. This is definitely a sign that something has changed in the industry and that indemnification is a feature that is ringing with customers of stock photos. Whether it is larger forced in the industry or customers are becoming wary about buying pictures on the Web, something clearly has changed in the past two years or so.

This ramp up in indemnification comes right after technology to detect matching images has really matured on the Web. Where, previously, a customer who bought a bad image from a stock photo agency would never be any the wiser, today, with the use services such as Tineye and Picscout, stock photo agencies and even amateur photogrpahers know when their work is being reused without permission and that means the scammed buyer now finds themselves on the receiving end of a cease and desist or, in the case of Getty, a demand for a multi-thousand dollar settlement.

If people are nervous about buying stock photos, especially from microstock sites, it is certainly understandable. While the risk of buying a bad image is low, as it always has been when dealing with reputable sites, the risk of getting “caught” when buying a bad image is not nearly as low as it was a few years ago.

A combination of unscrupulous sites, new detection technology and aggressive enforcement has made the climate very tense for buyers. Buyers want assurances that the agency will stand behind the images they sell and indemnification is the easiest way to provide that.

Bottom Line

In the end, the advice Shutterstock gave is easily the best you can get. Buy from reputable sites, read the terms of use and follow them. If you do that, the odds of you having an issue with a purchased stock image is very, very slim, with or without indemnification.

That being said, indemnification is always better to have than to not have. If you can get it and it is free, it’s always better to have the assurance than not. That being said, once again, make sure to read the requirements of the indemnification closely and learn what your responsibilities are in the event you are threatened. Most require you to notify the company within X number of days of receiving a threat and to turn your case over to them.

All in all, the critical thing is to be smart about your stock photo purchases and to not treat Google as a stock photo library or make purchases without checking out the company. A stock photo purchase can give you a great deal of a headache if you don’t do it properly and its worthwhile to be smart about where and how you buy.

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.

In an newsletter sent to its members, stock.XCHNG, better known as either “SXC” or its domain, sxc.hu, announced that it had been purchased by Getty Images, one of the largest stock photography agencies. This is the latest in a long string of purchases for Getty Images, which has included budget stock photo site iStockPhoto and more recently Jupiter Images.

Stock.XCHNG is best known as one of the world’s largest and most popular free stock photo libraries, with over 400,000 images that are free for download and use (with some licensing restrictions in some cases). According to the announcement, this will not change. However, stock.XCHNG will be offering users the chance to purchase photos from Getty’s iStockPhoto service on the stock.XCHNG site.

However, not everyone is happy about this purchase. I was alerted to the buyout by users of stock.XCHNG that fear both a change to the site, especially over the long term, and Getty’s notoriously aggressive copyright enforcement.

Getty, which routinely sends out invoice demands to alleged infringers, has earned a reputation for being extremely zealous in its enforcement and that has made some uncomfortable using even legally licensed Getty photos on their sites. This has also sparked a backlash from those affected and at least one lawyer has offered assistance with Getty cases at a fraction of their normal rate.

Stock.XCHNG is a site that I’ve used repeatedly on PT, recommended highly on the site, in presentations and in private to friends. Though it seems highly unlikely that Getty would expand its litigation tactics to stock.XCHNG images, which were freely licensed to begin with, almost immediately after the announcement I received several emails asking about alternatives.

Though, to be clear, I don’t think that anyone who has used or uses stock.XCHNG images on their site will be at any risk not only is the use completely legal (so long as the restrictions are followed), but it doesn’t appear, looking at the terms of use, that Getty would have the ability to take such action. Stock.XCHNG is a non-exclusive where Getty, on its own site, owns all of the rights to the images it sells.

Still, if anyone wishes to consider an alternative. I highly recommend PhotoDropper for WordPress for those who use that platform. For those who don’t, CC-licensed images are probably still a very good way to go for free, legal images to use on your site.

In the end, I will likely continue to use stock.XCHNG, though my uses will continue to be very limited. I already favor capturing my own images, usually via screenshots, and PhotoDropper to stock.XCHNG due to sizing and licensing issues.

However, I, along with other users, will have to monitor this and see if and how the site does change over the long term.