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.

A short list of changes include:

• Added comment count to all “Read More” links on the home page.
• Re-Added MyBlogLog on all pages save the home page.
• Re-Added my Twitter to all pages.
• Added arrows to items in the top bar that produce a drop down.
• Removed the full category list (was not being widely used).

The result should be a much cleaner and easier to use site. The Twitter and MBL additions are on a trial basis only though, so if you use those services, add me and let me know so I’ll keep them around this time.

Please let me know what you think about these changes and feel free to make any suggestions you have. More tweaks will probably be coming in the next few weeks.

There was a great deal to go over this week including the release of WordPress 2.3.3 and other blog security issues. Also covered is the new Prologue theme for WordPress and the ability to convert WP into a contact manager.

You can listen to the podcast by visiting here.

You can also leave comments there or contact the show the be a part of it!

My Technorati and Google Blog Search feeds stream to me a great deal of posts about plagiarism, content theft and copyright infringement issues. However, a large percentage of those sites that come across my radar are discarded almost instantly because of the probability that they are spam blog.

Since I don’t want to comment on or provide traffic to a blog that is likely computer-generated, I click away from these sites as soon as I am reasonably assured they are junk.

However, this isn’t to say that I am perfect. I do, on occasion, mistake a spam blog for a real one but, as with junk email, the far more common mistake is mistaking a human-powered blog for being junk.

So, if you’re a human blogger and want tips to make your blog look less spam like, thus beating the scrapers and sploggers along the way, here are a few tips that I would offer for ensure you don’t wind up being discarded for being something you’re not.

1. Don’t Use Blogspot

Though I feel bad for the legitimate bloggers that use the service, the fact is that the signal to noise ratio at Blogspot remains very low. Over half of the blogs that I see from Blogspot in my RSS reader are spam, thus anything that I see carrying a Blogspot.com domain is immediately called into question.

A good, relatively spam free, alternative is WordPress.com. However, if you don’t want to move your site to a new host, you can also use Blogspot to manage your own domain.

Simply put, Blogspot has been the number one target for spam bloggers for a long, long time. Though many spam bloggers are moving to other services, usually creating their own domains and setting up their own servers, both the spam and the reputation will stay with Blogspot for a long time to come.

2. Don’t Use Default Themes

Most blogging services have a single default theme or, at the very least, a small set of them. However, they also offer you the chance to either change the theme out or customize it and make it your own.

Using a clearly stock theme sends up red flags. Very few bloggers like the default theme out of the box and most want to at least customize it. With thousands of pre-made, easily-installed themes available for you to use free, there is almost no reason to keep your default theme past the initial blog set up.

Giving your site a personal touch not only makes it a little bit more yours, but it also lets readers know, at a glance, that your site is operated by a human, not a machine.

3. Change Other Defaults

Though changing the template or theme of your site is extremely important, there are other defaults that have to be changed.

WordPress, for example, sets up a default blogroll, creates a “Hello World” post, defines a default user, inserts a generic tagline (Just Another WordPress Weblog) and a builds a meta section upon install. These are all things that should be changed as quickly as feasible.

Though many spammers change some of these elements, especially since the blogroll is now a common place for putting spam links, most fail to change all. Humans, however, typically catch these elements and try to change them to something a bit more suited to their site.

In short, the more elements on your site that one would consider “stock”, the more inclined I am to believe that your blog is actually junk.

4. Get a Good Domain

Good domains are hard to get, but not impossible. If you are going to get your own domain, it is worth taking a few moments to be creative and purchase a decent one for your site.

The key elements to remember are pretty simple. First don’t make the domain too long, especially with the intention of stuffing keywords, and avoid unusual extensions, especially .info and .ws as they are both primarily used by spam sites.

You might have to be creative and make sacrifices, but decent .com and .net domains are still available. If you can, it is much better to use them than to both punish your readers with long URLs and demean your own site.

Users and search engines alike favor better URLs that are unique and easy to remember.

5. Avoid Spam Keywords

Though it might not be possible if you’re creating a site about internet poker or online pharmacies, avoiding the unnecessary use of spam keywords is very important to not looking like a spam blog.

It is important to remember when naming your site that certain keywords create a knee-jerk reaction in both readers and search engines alike. To find out what those keywords are, just open up your spam folder and look at the junk that has been sent to you via email.

If you use these keywords in your name or link to other sites that have them in theirs, expect readers to mistrust your site and also expect search engines to keep away.

Conclusions

Some will wonder if, by posting this article, whether I might be helping the spam bloggers. The answer to that is probably not.

For the most part, these techniques are pretty obvious. Spam bloggers know that their sites look like spam and don’t particularly care. Whether they are trying to pump search engine rankings or encourage clicks on advertisements, spam bloggers don’t want visitors to stay long on their sites.

However, they do rely upon users not being able to easily distinguish between spam and ham. That confusion is aided, in no small part, by legitimate sites not making simple changes that clearly distinguish them as legitimate.

So while these techniques have been known to spammers for years, they have been able to largely ignore them because legitimate sites have ignored them as well.

Even if this is just an escalation of the spam wars, anything that can make spammers work harder and spend more time on their site is a good thing.

Because, even if it only takes them a few seconds to make the adjustments, that time adds up when you’re creating thousands of junk blogs.

The long and short of it is that work is the enemy of the spam blogger. The more we make them work, the harder it is for them to earn their profits. In the long run, that means fewer spam bloggers.

Besides, it is better for bloggers and visitors alike if legitimate sites are clearly marked as such. Not only does it make for a better user experience, but also for more of them.

It makes sense to take a moment and de-spam your site. The Web will thank you.

Update

Way to prove my point. Look at this screenshot of the first trackback I received on this post. You can literally find every element above, save the BlogSpot step, broken in these two screenshots.

Here is the tail end of the URL to prove my point about the domain.

I’ve gotten a lot of great feedback regarding the second beta including a a very thorough analysis from Lorelle of Lorelle on WordPress.

The new version of the site features several dozen fixes and additions but the main one is some major improvements in readability of the site. The font has been changed, increased and the line spacing has been tweaked. It should be much easier on the eyes.

Other than that there’s been some additions to the sidebar, tweaking of the page names across the top and a lot of cleanup. The usual known bugs apply and, add to that, my plan to re-add the CC license when the site goes live.

Once again, I’d greatly appreciate to hear what you think. If all goes well, I’m going to finish the polishing and, hopefully, push the new template live this weekend.

Thank you very much for your help, advice and feedback!

Overall, most people have been very positive about the new look and several people have made very good suggestions about how to improve the site.

I’ve taken many of those suggestions to heart and I’ve created a second version of the beta.

Click Here to View the Second Version

Once again, I am seeking your input and advice on this new layout. Below the fold are the changes made to this layout and the new known issues.

Changes

• Copyright 2.0 Show is moved to where the news section was. This was done because there is no clear divide between “News” and “Articles” but definitely one with the podcast and the written works.
• Expanded both the Copyright 2.0 Show and the Articles column to include five entries each.
• A “Most Popular” section has been added above the Copyright 2.0 Show section to highlight the articles that are most popular on the site at that time.
• Removed the Archives drop down in the sidebar as it isn’t necessary.
• Added a “Subscribe By Email” link under the subscribe heading.
• Many new graphics to for the stories. Refined some of the old ones.

New Known Issues

All of the old known issues still apply. However, it is worth noting that the “Most Popular” list is not actually a most popular list, it is merely a visual placeholder.

It is currently just another list of the latest articles, something that will change once I move the theme to the live server and install the appropriate plugin.

Conclusions

Once again, I turn the theme over to your thoughts and feedback. I look forward to hearing what you have to say. Please, feel free to leave a comment on this entry, send me an email or message me on Twitter.

I look forward to hearing what you have to say!