Commercial Printing: Thoughts on Photo and Art Reproduction Licenses

Photo purchased from … www.depositphotos.com

In life, nothing is free. In commercial printing, if you reproduce an image (a photograph or an illustration) that someone else created, you have to pay for the limited rights to do so.

In this light one of my print brokering clients came to me this week noting that she had purchased a subscription to a service that allows her to create pretty much whatever image she wants using an online artificial intelligence application.

My print brokering client regularly prints multiple copies of a small (approximately 2” x 3”) color swatch print book (there are 28 individual master versions) that help fashionistas choose make-up and clothing colors based on their hair and complexion. She also prints copies of a 72-page set of cards (much larger, 8.5” x 11”) with a die cut for the user’s chin, to be held under the user’s face and used in conjunction with the color swatch books. The goal is to help clients look good.

My client also produces print books and ebooks to support this proprietary color scheme (keyed to the seasons), and, for the decade I’ve been working with her, she has been incorporating her own illustrations (of women of various complexions) into these commercial printing products to illustrate her color selection process.

Rights for Reproduction

So, back to the artificial intelligence images. My client called me asking the legal ramifications of reprinting these illustrations in her printed products, for which she will charge money.

I’m not a lawyer, nor do I play one on TV, but I do have 46 years of experience in publications and custom printing. So I had some suggestions.

First of all, when I was a print book designer back in the 1980s, the government education non-profit for which I worked would publish a yearly edition of a print book addressing 10 domestic and 10 foreign policy issues. The cover of the book included four large images, reflecting the edition’s highlighted issues. In addition, an overrun of the book cover became a marketing postcard distributed across the United States to sell copies of the textbook.

This was before photo CDs and before image downloads from the internet. At the time, we made an annual trek to a “picture agency” (a physical location) and provided a list of the kinds of photos (subject matter and format) we wanted to include in these two print products.

The proprietor of the picture agency would bring us sleeves of transparencies (slides), which we would review on light boxes. These were highly intriguing, unique images. We would choose maybe 20 and return to our office, promising to send back the unused, original slides (not even copies of original slides) immediately once we had made our final four selections. The original slides they gave us were so valuable as original art that one year when I sent back multiple sleeves of original slides, I had to insure the package for an exorbitant amount, something over $200,000 as I recall, since our organization could otherwise have been liable for potential loss of the package in the UPS delivery process. Needless to say, buying images now (or the rights to reprint such images) over the internet sidesteps this problem.

Rights-Managed Imagery

Each year we had a specific license called a “rights-managed” license telling us what we could and could not do with these images (the artwork, or in this case photos: the intellectual property rather than its rendering on acetate slides).

For the photo reproduction license, we paid a different amount based on the size, placement, number of reproductions (the press runs of the print products), and physical distribution of the reprinted photos (in print books distributed throughout the United States, for instance).

Some years we bought rights to additional photos we would use within the text. (These cost less.) Cover shots (we eventually decided on four each year) cost more. The number of copies of the book (and the fact that they were for educational rather than promotional use, distributed for free with our government education experience in Washington, DC) also made a difference. I’m sure the cost would have risen had we made a profit on the print books (if they had not been supplemental to the government education seminars we provided).

Our promotional use (in addition to the educational use in the print books) also made a difference. The 60,000 copies of the cover overrun printed on a marketing postcard along with sales language cost more as well.

What we got for all this money was the following. We had explicit rights to reproduce photos from around the world that were truly unique and amazing, reportage shots from war-torn countries as well as more commonplace images for our domestic issues chapters in this print book. All of the images were of the highest quality, and they were one of a kind. That is, few if any other organizations’ print books would include images like these (and certainly not the same ones).

Royalty-Free Images

I’m sure this option was around as well, but I didn’t know about it because we already had a process. Royalty-free images, which I started to see available online in the ‘90s or on CDs including huge assortments of digital art and photos, were a lot cheaper than our rights-managed images. Unfortunately, they were also were more generic.

That said, the lower cost for the reproduction license (in some cases a subscription price to use a large number of images each month with far more latitude than with rights-managed contracts) made this ideal for certain kinds of publications. In fact, when I started my own business in 1998, I used a lot of royalty-free images in the freelance design work I was doing at the time. Everything was affordable, and, as I recall, as long as I credited the company (on the printed product) from which I had bought the rights, I could alter the image if I chose to (posterize or colorize it, for instance, but presumably alter it in other ways as well).

Back to My Client

So when my client contacted me last week about using an online AI illustration generator in her work, I went through the preceding discussion with her. I also described the concept of “derivative work,” which involves altering a photo or illustration she was buying rather than reproducing it exactly as it was originally presented.

(To put this in context, back in the 1980s and early 1990s, when we were buying rights-managed reproduction rights, we never would have thought of altering the images or using them to make a political statement or to sell anything but our specific government education print book.)

Interestingly enough, my client had spoken to her lawyer (which I thought was smart), and he had said that artificial-intelligence-created imagery (which is what she now has) cannot be copyrighted because it is not produced by humans.

I told my print brokering client that getting feedback from a lawyer was a smart move. I also said that the final arbiter would be the specific image reproduction license she had purchased, which would set forth her rights and obligations, along with the duration of the contract, how she could alter the images, etc. I presumed that anything not explicitly stated in the license would be fair game, but I also suggested that she consult her lawyer about image alteration. I also made sure she would remember to credit the agency (as noted in the license) from which she was buying online artificial-intelligence services.

The Takeaway

How does this relate to you as a designer or art director selecting photos or illustrations, presumably through some kind of online service?

1. Read the license carefully and abide by it. Some people, for instance, without knowing they have to pay for it, link their web pages to media owned by other people and (even if it’s an accident) wind up paying hefty settlements. Avoid this.
2. Understand the concept of “derivative work.” Only alter your images if your license (usually a royalty-free license) says you can do this.
3. Understand the differences between a rights-managed and royalty-free license, and know when you will want to use one or the other.
4. Understand that an image may be under copyright in one country but not another.
5. Consider “public domain” imagery. This is imagery that has fallen out of copyright protection or has never been under copyright protection. Shakespeare’s works (granted they are not images) were created before copyright protection existed. In layman’s terms, public domain means you can use it for free and not hear from a lawyer.
6. Ideas cannot be copyrighted, only their expression.
7. If you’re designing for the internet, be especially conscious of your actions. I’ve heard that some copyright owners don’t accept your apologizing and then deleting their image from your website (because someone else might possibly have downloaded the image while it was on your website).
8. When in doubt, ask a lawyer.
9. Finally, remember that copyright is a way that other artists can ensure that their intellectual property is not stolen or used in ways they would disapprove of. So it’s not a bad thing, just one for you to understand and be mindful of.

This entry was posted on Sunday, April 2nd, 2023 at 11:42 am and is filed under Photos. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.