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Contents

Definitions

• The Most Important Question to Ask:  Does it matter to this project if someone else, maybe my worst enemy, uses the exact same picture?

Buying a picture from ANYONE? A Survival Guide!

 
There are critical differences between what is known as "traditional" stock photography ("rights protected") and "royalty-free" stock photography-- and those differences go way beyond simple cost issues.

As a graphics professional, making adroit, informed use of photography is as crucial to you as is the use of a scalpel by a surgeon, and one of the most significant developments in the graphic design world has been the relatively recent emergence of the availability of "royalty-free" stock photography. These are stock photos you can buy outright-- and use any way you want, as much as you want. This is a significant departure from the more traditional way of doing business with photo agencies-- where you lease the use of a picture for a specific purpose at a negotiated price.

The key is knowing when to opt for royalty-free-- and when not to.

There are times when "royalty free" is your best solution. But there are times when not knowing the pitfalls of royalty-free can lead you to disaster.

And there are times when traditional "rights protected" stock photography is the only avenue a true professional would consider, despite additional cost and complexity

Which is which, and when is when?

Getting clear, unbiased information can be difficult:

Traditional stock agencies have nothing good to say about "royalty free" (they see it as a threat to their revenue-stream)

Royalty-free purveyors would like to convince you there’s never a good reason to pay extra money or endure the "hassle" of "rights protected" stock (and they're not point out the dangers and downside of royalty-free).

They’re both wrong. But no-one’s going to tell you about that-- except Comstock. Because we sell both.

This puts us in a unique position to be completely candid about the advantages and disadvantages of each-- and that’s what this document is all about.

Sure, we’d like you to consider Comstock when it comes time to find a great picture, "rights protected", "royalty free", or a combination of both. But whether you're working with us or anyone else, the crucial, insider information you'll find here will help you do it.

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"Royalty Free" vs. "Rights Protected":
            Six Differences you MUST be aware of!

	Definitions
	1. Permitted Use - What the heck are you Allowed to DO with these Pictures?
	2. Cost - A few Surprises
	3. Competing Use Protection - Don't get burned!
	4. The Nature and Purpose of the Imagery - (This'll surprise you!)
	5. The Size of the Image Reservoir - An Ocean or a Pond?
	6. The "Hassle" Factor - Things are changing!

Definitions

An old Chinese proverb says that the beginning of wisdom is "using the right terms". So, to start, let’s define what is meant, in current industry lingo, by the terms "rights protected" (traditional stock) and "royalty free" (clip photography).

Traditional "rights-protected" images are "rented" for a specific purpose at a specific price. They are sold by the hundreds of stock photo agencies around the world, many of whom have been in business for decades.

Royalty-free images are purchased outright and can be used any way you want. Until recently these have been sold by relative newcomers to the photo industry who are operating under the assumption that there are better ways for designers to interface with the photographic community than the traditional way.

Seems pretty simple, right? Many people think there is only one difference between "rights protected" stock and "royalty free": Price. (Indeed, certain royalty-free purveyors would like you to believe that.)

But there's much more to it-- and knowing the "story behind the story" is crucial.

So let's take a deeper look at each of the six fundamental differences between traditional, rights-protected imagery and royalty-free:

1. Permitted Use - What the heck are you allowed to DO with these pictures?

With traditional "rights protected" stock photography you are essentially renting the use of a picture for a specific and clearly stated purpose. If you want to use the image in any other way-- you need to secure permission to do so.

As such, the "rights" to the image are "protected" by the agency. (See "competing use Protection" below, for the advantage of this "control" for you.)

With "royalty free" images the purchase price has nothing to do with how you intend to use the pictures. Whether you purchase a CD-ROM containing lots of pictures-- or a single picture downloaded from the WEB-- you may use it in any way you want (more or less, depending on which royalty-free vendor you’re dealing with) as much as you want as many times as you want-- with no further payment due to the vendor.

The Kicker: "Royalty Free" isn't necessarily royalty free. If you read the fine print, virtually every purveyor of royalty free images (including Comstock) places at least some restrictions on what you can do-- see No Items For Resale.

2. Cost - A few Surprises

	Pricing: Traditional "rights protected" stock photography
	Pricing: "Royalty free" clip photography

Pricing: Traditional "rights protected" stock photography

  "Traditional" rights-protected stock images cost anywhere from one or two hundred dollars for use in a small brochure, to many thousands for national advertising. The price of the picture is determined by how you want to use the picture.

How does it work?

Call up any of the many traditional photo agencies, or select a picture from one of their catalogs, and you will be required to negotiate a fee for the "rights" to use that picture in a specific and clearly defined way. The agency will thereby "control" the "rights" that it grants to you for the fee you both agree upon.

Generally, the fee you will be charged will be based upon the scope of your project-- and the permission you receive to use the picture will be limited to that which is outlined on the invoice..

There are many reasons for this pricing structure, but one of the reasons is that a picture you use in a widely distributed project is diminished in value to the agency far more than if that same picture is used in a little brochure.

Why? Well, that’s the other part of "rights protected" that works to your advantage.

How this can work to your advantage

Just as the agency is "controlling" how much you use the picture-- so, too, it can control whether your competitor uses the picture. (The corollary is that before you buy a picture you can know where else it has been used, if at all, and then decide for yourself whether you view the prior use as a problem.)

This is, perhaps more than anything else, the one great advantage of "rights protected" stock photography over royalty free: A picture is never used in a way the agency doesn’t know about (unless it’s being used without permission) so the agency can provide a large degree of "safety" that you’re not going to be embarrassed by having the picture you have used in the exact same way by someone else.

Thus, the operative word in "rights protected" is protected: Yes, the amount you can use the picture is subject to strictures-- but the amount anyone else can use it is protected, too.

[By the way, Comstock has a free brochure available called "Demystifying Traditional Stock Photo Pricing" that gives all kinds of helpful tips on how to get the best price when you're dealing with rights protected stock photography. It's free by calling 1-800-225-2727].

Pricing: "Royalty free" clip photography

 
Royalty-free images are predominantly sold as collections on CD-ROM. We've seen royalty-free discs containing from fifty to several hundred images for as little as $50, although $300 to $500 is more common. Some companies also allow you to purchase individual royalty-free images from a Website, with the cost based upon the file size. (But hold on to your hat: that's probably going to change…)

So far, "royalty free" sounds like a pretty good deal, and the question becomes: Why would anyone pay a lot for one image when they can get many images for a little?

Well, there are reasons-- good ones that we'll discuss as we proceed-- but, for now, here's just one of them:

The Kicker:

It's one thing to pay several hundred dollars for 100 or more royalty free images on a disc. It's another to pay that amount when there are only one or two good images out of the 100 on the disc. (Those of you who have bought some of our competitors' discs know exactly what we're talking about.)

All of a sudden you're paying almost as much for the one or two good royalty free images as you would for rights protected images-- with none of the advantages of the traditional side (which we'll get to in a minute…)

Is a royalty-free disc with only two or three good images on it worth the price anyway? Maybe. It depends on your situation. But if you're assessing real cost comparisons-- all of a sudden paying for a "rights protected" image doesn't look quite so expensive compared to what you are paying for a CD-ROM with lots of images-- 98% of which are unusable. [Shameless self-promotion: With Comstock's royalty-free discs we make sure all the images are great-- not just one or two.]  

 3. Competing Use Protection - Don't get burned!

Does it matter to this project if someone else, maybe my worst enemy, uses the exact same picture?

If the answer to that question is, "yes", then we strongly recommend the use of "rights-protected" picture from a traditional agency-- so long as that traditional agency does, indeed, have am sophisticated rights-control apparatus in-place. See What to Look for in a Traditional Agency.

Is it likely that someone else will use the same picture in a way that causes you a problem?

Well, that depends on a number of factors, and you should weigh each one carefully as you decide whether to go with rights protected or royalty-free.

Here are some guidelines to help you think it through:

First, broadly speaking, there are two issues:

• Is it likely that someone with a competing usage will use the same picture?
• If someone does use the same picture-- will it matter?

Let's take them one at a time:

Is it likely someone with a competing usage will select the same picture?

  As you'll see as you read on in the section called "The Size of the Reservoir-- An Ocean or a Pond", as of right now there are vastly more "rights protected" photos available than royalty-free. Therefore, to a certain extent it's a numbers game: the odds. If everyone is drawing from a small pond of royalty-free images, it's far more likely they're going to select the same picture than if they are drawing from the ocean of available rights protected images.

And, if you and your competitor are in the same boat (meaning that your projects are so similar that you're likely to be looking for the same kind of fish), it's that much more likely you're going to gravitate to the same image. A good rule of thumb when using royalty-free is to imagine that, yes, someone does use the exact same picture, and assess how you would feel about it. While it's probably more likely that it won't happen than that it will-- you need to be sure you can live with it if it does.

But then…

Does it really matter if someone else uses the same image? Four Key Factors:

  Since there unquestionably are significant cost and logistical advantages to royalty-free, it's a good idea not to be too restrictive in your thinking.

While at first blush you might say to yourself, "No, it would be too awful to be embarrassed by having someone use the same picture in the same way," you might want to examine it in the light of the following factors:

• Viewers remember pictures with people in them far longer, and far more specifically, than pictures that do not have people in them.
  Therefore, if the picture you're thinking of using does not have models in it, your chances of being embarrassed by a competing usage-- even if it does happen-- are far less. People aren't going to remember, necessarily, that they've seen the same picture used twice.
  
• Are you going to use the picture as the "major visual" in the piece you are designing?
  If not, if the picture is secondary or supportive or essentially just one of many "graphic elements", the competing use issue is diminished considerably, possibly to insignificance. After all, the viewer is going to key in on whatever you do use as the "major visual", so if you protect that, it might very well be sufficient.
  
• [Incidentally, that's why, as you'll see as you read on, many savvy art directors are using a combination for their projects: Traditional, rights-protected stock for the major visuals, and royalty free for the backgrounds, objects, and supporting elements. It makes good sense. Go to: Why Savvy Art Directors use a Combination of "Right Protected" and "Royalty-Free"-- and HOW]
  
• Will you be altering the picture or using only part of it?
  Is the picture going to experience a Mac Attack? Are you going to work it, change it, play with it or take just part of it? Obviously, as you move away from the original image the competing use problem diminishes accordingly.
  
• Is the distribution of my piece broad enough to even worry about this?
  Doing an in-house presentation? A local newsletter? A Web page buried seven levels down? Who cares if someone else uses the picture? Royalty-free makes complete sense.

But make no mistake about it, and don't forget: If you are trying to decide between "Traditional" rights-protected stock and royalty-free, the very first question you should ask yourself is (yes, it's so important that we'll say it again):

Does it matter if someone else uses the same image???

If it does matter, in any way-- we highly recommend rights protected photography where the agency controls the rights-- not only how you use it, but how anyone else uses it. [Oh, and by the way, that's something you should nail down with your traditional agency: Some agencies do a better job than others on all these "controls", and if you're paying for control, you ought to get it. See "What to Look for in a Traditional Agency.]

Royalty-Free and Magazine Advertising: A Dangerous Combination

If the risk of competing usage is the biggest danger of using royalty-free, advertising is the most problematic venue.

Why? Think of it this way: Embarrassing double usage on, say, competing brochures is bad enough, because it's quite possible the "end viewer" will at some point see both brochures. But the chances are that the viewer will see the brochures sequentially separated in time. However, if your competitor uses the same picture you do in ad that appears in the same magazine-- the end viewer will not only see both ads-- they will see them at virtually the exact same time.

Consequently, whether you are doing a consumer magazine ad, a business-to-business trade ad, or a newspaper ad, always remember that royalty-free's lack of rights-control means there is no way you can prevent-- or even have prior knowledge of-- an extremely painful dual (or even triple) usage of the same image, at the same time, in the same venue.

Yikes! Doing an ad? Think rights-protected, traditional stock.

4. The Nature and Purpose of the Imagery - (This'll surprise you!)

  One of the biggest misconceptions about Rights Protected Stock vs. royalty free is that essentially the same imagery is being sold-- with the only difference being the price structure.

Not so.

Indeed, as Geraldo might say, "This is a developing story..." You are going to find, increasingly, that there will be a split, a kind of "mitosis", between images provided by "Traditional" photo agencies and those provided by royalty free companies. (Shameless self-promotion: At Comstock we're especially attuned to this because we sell both.]

As a designer or art director, you've probably already noticed that there is something different about the imagery itself, rights protected vs. royalty-free (at least, good rights protected and good royalty-free) but it's so visual, so ineffable and hard to describe that you probably can't quite put your finger on it…

Well, there is a difference, and here, in part, is a way to think about it:

To the extent that you want the image to dominate your "theme"-- you are going to find the right image in "rights protected".

To the extent that you want the image to support what you are doing, visually-- you’re going to gravitate, appropriately, towards royalty-free.

The "image reservoirs" on each side will begin to look more and more different to you, and understanding that difference can give you an important roadmap in your decision-making:

	Rights Protected Stock: Look for "Story Telling power"
	Royalty Free: Look for "Image Adaptibility"

Rights Protected Stock: Look for "story telling power"

Rights Protected stock photos are intended to be used intact, shot to communicate a powerful message. Sure, good stock photos are always composed to give you flexibility for type, cropping and re-sizing. But, in general, they represent a "complete" composition with all elements of that composition designed to support a central theme or idea-- a "story".

They are often extremely expensive to produce and represent the best creative work of some of the world's foremost professional photographers working at the top of their form.

Indeed, if you see royalty free discs, including ours, that make you say, "Hey, these royalty-free images look pretty much like rights protected stock to me"-- it’s because you haven’t yet noticed that rights protected stock is now moving-- rapidly-- upscale. It’s splitting off. It is becoming the place where the best photographers in the world offer their most powerful, creative non-traditional-looking images.

This trend will continue and accelerate. Don’t "write off" rights protected stock as being anachronistic or unnecessary, thinking you can get the same thing in royalty free. If you do, you’ll be missing out on the arena where you’ll find the finest work, the most current work, of the most sought-after photographers in the world (all at surprisingly reasonable prices).

Royalty Free: Look for "Image Adaptability"

A great royalty-free image is an image you look at and can't wait to change. You want to get it into your computer and begin to work with it.

You want to take a part of it and flip it or manipulate it or put it with another picture and another and begin to create a unique, personal composition.

Arguably, good royalty-free imagery is a direct result of the way computerized graphic design has vastly expanded-- in essence liberated-- graphic design from traditional strictures. You are out there doing marvelous, creative things with these new tools, and constantly finding fresh ways to incorporate photography into what you do..

What is most interesting to us (as image providers) is that you designers are experimenting with a kind of visual polyphony (to use a classical music metaphor). That is, in addition to traditional homophony where one central theme is supported by all else (think of Beethoven’s Fifth), you are increasingly creating a visually polyphonic approach: Several themes, or even many themes, all with equal weight and import, are interwoven in marvelously supportive ways (think of the Renaissance masses of Palistrina.) It’s a bit of this, a piece of that, all masterfully stitched together into a powerful visual whole.

The increasing reservoir of royalty-free imagery is making this kind of multi-image composition (where, indeed, the image is often used not so much for it's "story-telling", but, simply, for it's graphic substance) both possible--and affordable.

We’re loving this, believe me.

And we’re also reacting to it. While "Rights Protected" stock photography is moving towards those powerful, central visual themes that you then build around, Royalty free is moving towards the "bits and pieces", the backgrounds and elements and objects that you need to create your "visual polyphony".

Most designers are finding that they need-- and can make superb use of-- both rights controlled story-telling images as well as adaptable royalty-free pictures-- often within the same project. Go to: Why Savvy Art Directors use a Combination of "Rights Protected" and "Royalty-Free"-- and HOW]

5. The Size of the Image Reservoir - An Ocean or a Pond?

 
As of this writing there are probably in excess of one hundred million photos available to you in "traditional" stock photo agencies around the world.

There are, perhaps, 150,000 royalty-free images on the market, and, frankly, a lot of them are of questionable quality.

Yes, that will change.

[Shameless self-promotion: Indeed, at Comstock, we are changing it, rapidly. We offer thousands of royalty free images of the highest professional quality, and we're producing more and more every day. But those supplement the images in our rights protected collection, they do not replace them.]

All this has two very significant implications for you:

• Obviously, the chances that you are going to find the exactly right image for your project is far greater if you are drawing from a ocean of millions of rights protected images rather than a relatively miniscule pond of royalty free images.

If you have many, many people drawing from the same small royalty-free pond, the chances are very great that two people doing essentially the same thing are going to use the same picture. And, because of the nature of the royalty-free transaction-- they’re not going to know about this conflict until it’s too late. (See Competing Use Protection - Don't get burned!)

6. The "Hassle" Factor - Things are changing!

  Stuff that makes life simpler is good. Royalty-free can make life simpler (sometimes). Ergo….

Some Royalty free sellers describe their product as hassle-"free" while accusing rights protected transactions as being hassle-intensive.

As you might imagine, neither side of that pronouncement is precisely correct (after all, this is real life…) Royalty-free transactions have some definite advantages, but they cannot be described as hassle-free. (And if you go into it thinking they are-- you might get yourself whacked.) By the same token, traditional rights-protected transactions are becoming increasingly hassle-reduced-- as a specific reaction to the competitive challenge of royalty-free). In short, the "hassle-gap" between royalty-free and rights protected is probably narrower than you might imagine.

If you get up-to-speed on these issues, you'll have a real leg up when dealing with either, so let's take a look:

First of all, on its face, as the chart in the next section shows, a royalty-free transaction is simpler.

But there's more to the story. First check-out the chart, and then we'll look at the important underlying reality:

	Hassle Factor Chart
	Just how "hassle-free" is royalty-free? (Things they'd rather you didn't know)
	"Rights Protected" is getting better, faster and smarter (learn how to take advantage)

Just how "hassle-free" is royalty-free?   The following four aspects of royalty-free are areas of huge misconceptions by designers, so let's look at them one at a time:   No "Items for Resale"-- what the heck is that?    Competing Use-- the Mother of All Hassles  Need a transparency? Forget it!    Humanoid photo research - Welcome to Cyber-Chaos   No "Items for Resale"-- what the heck is that?   If you read the fine print of almost all royalty-free "Terms & Conditions" you'll find language that prohibits "items for resale". Often that includes such things as bookjackets, software packaging, tee-shirts and a lot of other mysterious things. The hassle-related question becomes: How do you figure all this out? Well, it becomes clearer when you understand what it is this restriction was intended to prevent: It occurred to people selling clip photography that someone could purchase their material, "royalty free" and then repackage it and sell it all to someone else. An obvious example would be a greeting card company offering a "make your own greeting card package". They might buy royalty free images and then include them in their product for other people to use them in their products, and so on. Or, a photographer could take royalty-free photos, incorporate them into their work-- and re-sell them as stock photos. Or, theoretically, someone could just buy a bunch of royalty-free photos-- and re-sell them, as royalty-free photos to someone else. Therefore, rather quickly, it became standard to say, okay, you may use these pictures in any way you want to promote or market a product-- but they may not be sold as the product itself (or part of the product). You can use them to promote, say, a line of tee-shirts-- but you can’t use them on the tee-shirt itself, because then it is part of the product that is being sold-- rather than being used to promote the product that is being sold. Thus the restriction against use on a software package or a book. A royalty free image may be used to promote the item-- but if it appears on the packaging (or on the cover of the book) it has become part of the product itself-- and you can't use it that way unless you, well, do something else. Like buy an "upgrade". Or negotiate a fee for the specific use. At which point the supposed "hassle-free" royalty-free transaction has just become virtually identical to a traditional rights-protected transaction-- of the type photo agencies have been perfecting for decades. (And they tend to be better at it than the royalty-free companies…) It gets a little dicey, doesn’t it? And the wrong move can land you in court. So, if one of the appeals of royalty free is the "hassle-free" nature of the transaction, bear in mind that with an awful lot of uses it may be just a bit less hassle-free than advertised...   Competing Use-- the Mother of All Hassles   If you look in the encyclopedia under "hassle" there will be a picture of your client (you know, the one you designed the brochure for) throwing his competitor's brochure on your desk with the exact same picture on it. You've got some 'splaining to do, Lucy… (See Competing Use Protection - Don't Get Burned!) The first time this happens to you is the last time you will consider royalty-free hassle-free…   Need a transparency? Forget it!   Maybe the day is going to come when you never need a photo transparency (you know, the silver-based slide)-- when all steps, all the time, will be best handled with a fully digital rendition of the photo. But that day is not here yet, but if you want to get your hands on a transparency of the picture you want to use-- most royalty-free companies are not geared up to give it to you. [Shameless self-promotion: At Comstock, we have the ability to provide you with a reproduction-quality transparency-- in addition to the digital file-- of any photo we sell, rights protected or royalty-free.]   Humanoid photo research - Welcome to Cyber-Chaos Traditional agencies aren't as "hassle-intensive" as they used to be. There are huge advantages to having a slew of royalty-free discs on your desk. They are there when you need them, 24 hours a day, and are convenient and quick when you need a picture. And, yes, this definitely represents hassle-reduction-- If you can find, on your own, the picture you need. However, you will be depriving yourself of a significant resource if you discount altogether the advantages of availing yourself, when circumstances are right, of the services of a large army of highly-skilled and trained photo researchers at the traditional agencies around the world. These are people whose profession is to understand the relationship between imagery and communication. At the best agencies they know the files-- very large files-- inside and out and have a highly developed ability to understand what it is you are trying to accomplish visually and then translate that into a targeted, highly creative selection of photos for you to choose from. Believe it or not, calling a photo researcher at an agency you trust, and having an intelligent conversation with them about what you are trying to accomplish, and then receiving a package of images geared to your specific project can be easier, faster and more effective than spending a lot of time searching CD-ROMS and then compromising, all the while wondering if maybe there isn't a better picture out there-- if only you could find it. Yes, many companies are endeavoring to introduce search mechanisms that mimic a kind of "humanoid" discovery process. Sort of. But it's got a long way to go. And until things get a lot better in the "artificial intelligence" arena-- there remain real advantages to dealing with, well, a real human being.   "Rights protected" is getting better, faster and smarter If you haven't done business with a traditional, rights-protected agency lately-- you might be surprised at what you find. Competition can be a wonderful thing, and, as a direct result of the competition royalty-free companies have presented to "traditional" agencies-- especially in the hassle-reduction department-- traditional agencies are responding in ways that hold significant benefits for you-- so long as you are aware of them. As an example, many good traditional photo agencies are now issuing their "catalogs" on CD-ROM. No, the images are not royalty-free, but they reside on the disc, on your desk, in low-resolution "comping" format. Yes, if there's a picture you find that you want to use in your finished project, you'll have to contact the agency and negotiate a specific price (and have them send you a transparency or full-resolution digital file) but at least the first part of the process has been made a lot easier for you. And what about traditional pricing? Prior to royalty-free, traditional stock photo pricing-- and the negotiating process you had to engage in to arrive at a price-- could be onerous and, at times, frustrating. But you'll find-- as a direct result of the hassle-reduced royalty-free pricing-- the better traditional agencies are simplifying their pricing structures, removing a lot of the arbitrariness, and making the process quicker and more predictable. Look for continuing progress on all these fronts, and, if your project does call for the protection of a rights-protected image-- be prepared for a pleasant surprise when you call your favorite traditional agency.   Model Release Fallibility - See you in Court Why this stuff matters    A Dirty Little Secret   Is it safe to assume the photo-seller has done a good job with model releases-- and that if they have not, it's their problem, not yours?    A signed model release will not necessarily cover "libelous" or "defamatory" use   How to protect yourself    Why this stuff matters: Consider this: If you think buying a "royalty-free" picture relieves you of any liability for model-release issues, you are wrong. If there is a problem and a lawsuit ensues, the plaintiff (model) will cast a "wide umbrella" and the people with the "deep-pockets" (and that will most certainly be your client, and probably you) are most vulnerable. How serious an issue is this? In America it is a fundamental, constitutional right of privacy. You absolutely cannot use a person's likeness for commercial purposes without express, written permission to do so-- in the form of a model release. (And not just any "release". The documentation must be solid and "perfected". See ) There are similar restrictions throughout the world.   A Dirty Little Secret You probably aren't going to hear this anywhere else, but… There are folks out there in the photo business who are willing to take chances with your livelihood by whistling past the graveyard-- your graveyard-- when it comes to model releases. Because they know something that perhaps you don't: They know that if there is a problem with the model release-- they-- the agency-- are not going to be first in line at the judge's bench-- you are. Or your client. We have a strong feeling, based upon a lot of years in this business, that in view of the large amount of material flowing in to the royalty-free arena from relatively inexperienced photographers to relatively inexperienced photo agencies that, well, a hard rain's gonna fall. By way of comparison, here is the way the best agencies handle the "behind the scenes" steps towards insuring solid model releases. When a potential model comes in for an interview they are informed in lay language (not just "legalese") what they are being hired for-- the production of stock photography. The agency will have the model sign not just the legal model release, but also an acknowledgement that the form and substance of the transaction has been fully explained in easily understandable language-- that there can be no confusion. Then the transaction is "perfected" with "valuable consideration". That means, in essence, that the model acknowledges being paid something "valuable"-- with the most indisputably "valuable" thing being, well, money. The language of the release had been thoroughly vetted by a knowledgeable industry attorney. The releases are then filed in a safe place in a way where they can be easily retrieved if a dispute should arise. (Shameless self-promotion: this is the way we handle things at Comstock.) Okay, here's how it works if the situation is handled ineptly by the agency: A photographer comes in with some pictures. He says, yes, the photo is "released". The agency takes his word for it and marks the picture "released". Maybe, yes, a release exists. Maybe not. The agency doesn't know. (Our favorite bonehead scenario: A photographer comes in to a company putting together a royalty-free disc. The company asks if the photo is "released". The photographer says, "Sure, that's my husband in the picture." Now here comes the divorce. You use the picture. The husband, who never did actually sign any kind of release, sees it. He sues your client. Who sues you. You sue the provider of the image. Who tries to sue the photographer-- who can no longer be found. Guess who's left holding the bag? Always remember, if a model release problem arises, the person who is in the most trouble is the end user of the image: That's your client-- or you.) Does the agency really know if a good release exists? Sometimes they won't begin to find out until a subpoena lands on somebody's desk. (Probably yours). Or maybe the agency does ask the photographer for a copy of the release. It looks sort of okay. Maybe. Could be better, but, what the heck, it's a release. What the agency doesn't know is that the photographer essentially hoodwinked the model into signing it. He told the model, "Well, sign this form so that I can use the picture in my self-promotional portfolio-- and you can use it in yours. Don't worry, it's just a formality." (This sort of thing goes on a lot more than you might think.) Will the release "stand up"? Maybe and maybe not. But it's going to cost you a lot of money in lawyers' fees to find out.   Is it safe to assume the photo-seller has done a good job with model releases-- and that if they have not, it's their problem, not yours? Here's an assumption a lot of designers make-- one that can get you into trouble: If you buy a picture from a photo agency, and the agency tells you they "have releases", does that mean you're off the hook? Put another way, if you buy a picture and there's a problem with the release-- it's their problem, not yours, right? Well, not exactly. If a fly-by-night (or ignorant) photo agency accepts pictures from photographers who erroneously claim they are "released"-- and then sells them to you (and you're assuming the agency has done its job)-- the buck is gonna stop on your desk. Unfair? We think so. And that's why we're taking the time to explain all this to you. If visitors to our site read nothing else, we hope they read this… Yes, in law there is something called an "implied warranty of merchantability"-- meaning that if you buy something, you have the right to assume that it will in fact do the thing that it's supposed to do: in this case, you're buying a photo that is supposed to be able to be used as you intend it, and if there's a model release problem-- well, it won't do the thing you bought it to do. And if you get sued, you can make that argument in court. At great expense to do so. And you might win. But you might not. Can you assume the agency has done a good job with releases? At your peril. Can you assume that even if they haven't, it's their problem, not yours? Nope. You'd be surprised how fast it becomes your problem if you use the picture and the model sees it. Is this one huge pain in the neck? It doesn't have to be. See How To Protect Yourself.   A signed model release will not necessarily cover "libelous" or "defamatory" use. You're doing a brochure for an alcoholism treatment program. You take a picture of a 45 year-old man off a royalty-free disc and put him under the headline, "Two Quarts of Vodka a day-- And Still Ticking." Or you're doing a magazine article about incontinence in the elderly. Or the headline of your ad is, "Only a Guy this Stupid Wouldn't Buy our Product." Would these uses be covered by a signed release? Maybe. But in many cases, they absolutely would not be covered. (Again, we're going to avoid the legal mumbo-jumbo, but this has to do with fundamental legal principles that say that a person cannot "sign away" basic rights-- such as the right not to be humiliated.) This, incidentally, is why the fine print of almost every royalty-free disc will specifically exclude use that is libelous or defamatory to the models. Do not assume that a model-release will cover your use if that use could conceivably leave the model open to humiliation or libel. What should you do? Contact the agency and have them negotiate with the models to sign another release for your specific usage. Or go to a different picture that does not have recognizable models in it.   How to protect yourself:    Three model-release questions you must ask when you use a photo-- royalty-free or rights protected    Steps to take to Protect Yourself    Three model-release questions you must ask when you use a photo-- royalty-free or rights protected Does a model release exist at all and, if so, where? If a model release exists-- is it solid and "perfected"? Does the model release cover the way I intend to use the photo?   Does a model release exist at all and, if so, where? If you look closely, most photo agency catalogs and promotions will have some kind of language about their model release policy. Often it reads something like, "All pictures fully model-released". As we've discussed above, what you think that means might not be what it actually means. Here's how that might translate: "The photographers have told us the pictures are released, and we've chosen to believe them, but we've never actually seen the releases, although I think last Tuesday I saw one lying around someplace, and, besides, if we had to get our hands on them all we have to do is call the photographer, if he's still alive." Tip: If you have any concerns at all about the agency you are dealing with, find out specifically what their policy is regarding model releases. Do they see a copy of the release for every single model in every single picture? Do they keep copies of those releases on premises, cross-referenced to each picture, so that if a problem arises you can be furnished-- immediately-- with a copy of the release?   If a model release exists-- is it solid and "perfected"? There are "model releases" and then there are model releases. Simply because someone has signed a piece of paper that looks like a model release, that doesn't mean it has been "perfected". We don't want to get into a lot of legal mumbo-jumbo here, but for those of us who have been in the stock photo business for decades, we know that obtaining a solid, thorough, unchallengeable model release that has been "perfected" with "valuable consideration" and other things-- is one of the most important things we do. One of the worst situations is being lulled into thinking everything is fine because a piece of paper has been signed by the model-- and then finding out that there are all kinds of loopholes-- or that it is so shabbily done as to be virtually worthless. Tip: Call the agency you are working with and ask to see the "standard" model release form they use. Take a look at it and use your common sense as to whether it is the type of thing that seems adequate. (Helpful exercise: Imagine you were a model who signed this form. What would you think it meant?) Better yet, let your attorney take a quick look at it. It might cost you a couple of bucks to do so now-- and save you a lot later. Red Flag: If the agency tells you they do not have a "standard" model release form-- that they leave it up to the photographers-- find out exactly what procedures they employ to make sure the various releases are adequate. If you don't like their answer-- shop elsewhere.   Does the model release cover the way I intend to use the photo? Please read the section of this document called A signed model release will not necessarily cover "libelous" or "defamatory" use to find out why even the best model-release might not protect you if you are using the picture in a way that could be deemed libelous or humiliating to the model. Don't make the mistake of thinking that because you're buying a royalty free image that "all bets are off" and that you cannot be held responsible for these issues. We don't have to tell you the obvious: Be smart and be a professional. If a surgeon buys a lousy mechanism for a hip-replacement he might try to lay the blame on the company that sold him the stuff-- but he's going to have a lot of explaining to do regarding his choices and his lack of due diligence.   Steps to take to Protect Yourself Here, in summary, are the steps you should take whenever you are buying a picture which has recognizable models in it from any type of photo agency: Make sure the agency has model releases, on premises, for each and every one of their pictures. Make sure you can obtain a copy, if necessary. Get a copy of their "Standard Model Release" and, if you have any questions or concerns at all, have it reviewed by an attorney. They don't use a "standard" model release? Be warned! And keep asking questions until you're satisfied that they know their business and are attending to it. Assess your usage of the photo carefully: Is there any chance the model could deem your use "humiliating" or "libelous"? If so, contact the model to get a release for your specific usage-- or use a different photo. Please do yourself a favor: If you are using a photo for commercial purposes (meaning for promotional or marketing purposes of any sort) make absolutely certain that the photographer or agency you're dealing with has a rock-solid system in place to be sure the model-releases are properly executed-- and available to you if necessary. (Shameless self-promotion: At Comstock we have had strong, amicable relationships with models and modeling-agencies for decades. We didn't establish these good relations by playing fast and loose with either the models' rights or our clients' needs.)   Conclusion: Why Savvy Designers use a Combination of "Rights Protected" and "Royalty-Free". Avoid the trap of locking yourself into an "either/or" way of thinking: Either I should use rights protected photography or I should use royalty-free. You don't want to miss out on what is ultimately the most effective way to interface with today's photography community: using a combination of both on any given project. How do you do that?  How do you figure out which to use when and why? Well, you've already started-- by reading this document.  So, let's quickly recap: We've talked about the idea that even though many people think there is only one "difference" between rights-protected stock and royalty-free-- cost (and even that one isn't always as it seems)-- there are actually six differences: Recap: "Traditional" rights-protected stock images vs. royalty-free clip photos The Six differences: (We'll hyperlink each one of these to the corresponding section of this document in case you want to go back and review) 1.  Permitted Use - What can you do with these pictures? 2.  Cost  (A few surprises) 3.  Competing Use Protection    (This one's a biggee...Don't get burned!) 4.  The Nature and Purpose of the Imagery Itself   (This'll surprise you!) 5.  The Size of the Image Reservoir -- (An Ocean vs. a Pond) 6.  The "Hassle Factor"    (Things are changing...) And we've discussed model releases -- why they matter and how to protect yourself. Taking all this into account-- what then, is the "best" course for a designer to take?  Rights-protected?  Royalty-free? There is absolutely no question but that the savviest graphic designers have found the answer, and the answer is: A combination of both. The smart move is to assess the "six differences" we've talked about within the context of any particular project you might be working on-- and then go in the direction best suited for that particular project-- or for that part of a particular project. Example:  We at Comstock (now, don't forget-- we sell both "rights-protected" and "royalty-free) are finding that, more and more, our customers who are working on, say, a brochure, will choose a "rights-protected" image for the cover of their brochure-- and several royalty-free images for the interior shots. Why? Because they know that in the case of the cover shot-- it very much matters if a competitor uses the same shot.  (See, Does it Really Matter if my Competitor Uses the Same Photo I do.) But on the interior shots-- it doesn't "matter"-- so they opt for the ease and flexibility of "royalty-free". Or maybe they're doing a magazine advertisement.  On the one hand, they're inclined to go with "rights-protected" to guard against embarrassing competing use. (See, Advertising and Royalty Free: A Dangerous Combination)  But, then, they realize that the photo they need will not only be a background image-- they're going to throw it into PhotoShop� and change it considerably.  Why not opt for royalty-free? Or maybe they use a rights-protected image for the major visual in their ad-- and then a royalty-free image for the background. Art directors and graphic designers who are being smart about all this are developing a huge advantage over their less-diligent confreres.  When you get down to it, it's just like any other profession:  It's a matter of fully understanding the tools that are available and then using the right "tool" for the right "job". . To help you think it through, go to the handy comparison chart, next.   Rights Protected vs Royalty Free: A Handy Comparison Chart     "Rights Protected" "Royalty Free" Permitted Use   One-time rights for a specific purpose.  Unlimited rights forever Cost    Low for small uses, high for big uses One price fits all Competing Use Protection    Sophisticated "Rights Control" to protect you None Nature & Purpose of Imagery    Powerful "Story-telling" Images  Adaptable Image Elements Size of Image Reservoir    100's of Millions  Tens of thousands The "Hassle Factor"   Less than commonly thought-- and getting better  Greater than commonly thought-- and getting trickier   Choosing an Agency, Royalty-Free or Traditional? What to Look for in Each In a Traditional Agency In a Royalty-Free Agency Sophisticated Rights-Control Professional Imagery Increasingly Unique Imagery All Images good, not just some Savvy, Creative Researchers Targeted "Collections" Clearer, less-complicated pricing Superb Scans Overall "hassle reduction" Good, Clean "Clipping Paths" Bullet-Proof Model Releases Bullet-proof Model Releases   If it's on a CD-ROM, does that mean it's Royalty-Free? No! And be careful! Many traditional agencies are also providing their images on CD-ROM-- but the images may be used for layouts and comping purposes only. The images are fully copyrighted and if you mistake them for royalty-free and go ahead and use one in your project-- you can be liable for copyright infringement penalties of up to $100,000 per infringement. Yikes! Whenever you pop a CD-ROM of images into your drive, be sure you have read the label and the documentation extremely carefully. Know what you can and cannot do with the images on the disc.   If it's on the WEB, does that mean it's Royalty-Free? Nope, nope, a thousand times nope. There are huge storm clouds brewing in this area and you definitely don't want to get caught in the hailstorm. As you know, it is extremely easy to "capture" an image off of any web site-- at which point you've got the "digital information" resident on your computer. But while you have the ability to do it-- you absolutely do not have the legal right to do it. Pictures on the web fall into the legal category of "intellectual property"-- with the operative word being "property". They are owned by somebody-- usually not you. And this area of "intellectual property"-- specifically the protection of it-- is being debated vociferously in just about every congressional and parliamentary body in the world. And what you're going to find is that because it is so "easy" to capture someone else's' intellectual property-- the only way to prevent it is to make the penalties so severe as to make it exceedingly unwise to do so. So keep yourself out of trouble. If there is an image you want to use, from any source whatsoever, make sure you do what is necessary to make absolutely certain that you have the legal right to do so.   Shameless Self-Promotion (and some Free Stuff, to Boot) If you've waded through this entire document, we want to thank you for sharing some time with us. We've tried to provide unvarnished information that will be helpful to you whether you are working with us at Comstock-- or anyone else. Sure, we'd love it if you'd give us the opportunity to be of service to you, and, just as we've tried to point out here some of the opportunities and dangers associated with dealing with photo agencies-- we like to think we've done a better job than anyone else creating an ideal photo agency for you to work with. If you'd like to know more about our illustrious history (we really are quite proud of it…) see about Comstock. And we'd also love the opportunity to send you some of our free material. You can get catalogs of rights protected photos-- and CD-ROMS to select comping pictures from. Or we'll send you material on our royalty-free collections. If there are other informational areas you're interested in, Comstock offers a variety of free brochures. All this is available in our Free Stuff section.  If you're currently in the market for royalty-free images-- click here to go to our royalty-free division where you can select from a variety of Comstock royalty free  CD-ROM collections. Or click here and go to the Rights Protected side of our Web Site and learn about the many "rights-protected" images we have available.   Questions or Feedback? We'd love to hear from you… We’ve tried to cover these issues concisely but thoroughly. Is there anything we've left out? Anything in particular we could expand on or be clearer about? Don't hesitate to contact us. If you have a question, we'll try to answer it. If you have good things to say-- that's always pleasant to hear. Or if you think we're being idiotic-- we'll listen to that, too. It's the only way we'll get smarter, and we're interested in doing that. www.comstock.com 1-800-225-2727