Take the 2-minute tour ×
Graphic Design Stack Exchange is a question and answer site for Graphic Design professionals, students, and enthusiasts. It's 100% free, no registration required.

I know Google image search is not a free-for-all to grab any image needed. However, many, many, many clients don't grasp this concept and often request or send images they'd like to use in a design or product which are clearly a violation of copyrights.

I recently had a client send an image to me which, frankly, seemed too well done and too specific for the client to be sending. My thought was, based on the clients business, it was doubtful they paid someone to create the illustration depicted in the image the sent.

So, I did a little reverse Google image searching and found the original, which actually won an award for illustration a few years ago. I immediately knew the image was a violation of copyrights and threw it away. I expressed the violation to the client only to be met with "Do a Google image search for 'XXX XXX XXX' and you'll see everyone is using it. Please use the image."

When designing a piece and a client requests the use of an image they "found", and it is clear it's a violation of copyrights, what should a designer do?

I realize this is a legal question but... Can the designer include a clause in a contract to protect themselves from liability due to these requests? Is this effective?

In some cases, clients are fully aware that they may be infringing. However, in their words... "The worse that can happen is we get a 'cease and desist' letter. We'll remove it then." My ethics cringe at this. How should this be approached?

share|improve this question
1  
The answers here are good so I won't bother adding my own. The only thing I have to add is that you are the designer that will be attached to this when (if) it all hits the fan. Contract clause or not, the layman will attach blame to you. –  TunaMaxx Jan 31 at 17:37
4  
You should never do it if you even suspect its a violation because as @TunaMaxx max said, its on you no matter who made you do it. To indemnify yourself as best as possible, I suggest that you reach out to the copyright holder and let them know that your client wants to use this work and do you have permission to do so. If they say yes, you are done, if they say no, ask them to notify your client in writing and that should get them off your case and protect you in the process. This way, YOU are not the bad guy saying no, you tried. –  GµårÐïåñ Jan 31 at 18:28
2  
@GµårÐïåñ doing that kind of end-run around your client might be a fireable offense, but in this situation, that might be a feature rather than a bug. –  Lauren Ipsum Feb 1 at 1:27
    
I get this a LOT at the print shop I work at. I have a copy of the law stating what I can and can't print and what is considered under copyright and I constantly have to turn people away because I refuse to break the law for these people. They have given me every excuse in the world "It personal, not for profit." "But I own this book..." "No one is going to know, just do it.", etc. Every single one of them gets pissed at me and leaves, but seriously I could get sued for $150,000 (which the company was by the Jahovah's Witnesses for making copies of the Watchtower). –  OghmaOsiris Feb 1 at 1:36
1  
@LaurenIpsum they can't fire you for respecting the law and doing the right thing, that would be a wrongful termination :) Not really an end run, you are asking for permission and what results from the person saying no is not your doing. I rather be fired wrongfully for doing the right thing than to keep a job that can put me on the hook legally. –  GµårÐïåñ Feb 1 at 20:10
show 1 more comment

8 Answers 8

up vote 31 down vote accepted

I've never run into this exact problem but if a client sends me a logo from another company I email them back asking if they have written permission to use said logo in their marketing. If they say yes then that is sufficient for me. To word it nicely I go with something along the lines of:

I see you'd like Acme Co.'s logo included in your artwork, do you have any sort of authorization from them to include it? Just as I wouldn't include your company's logo in someone else's artwork without checking with you first, I have to do the same for them.

Since this is more about a copyright image off of Google I would probably take a similar approach.

I remember seeing this artwork back when it was published in such and such (or when it won such and such award). I'm not familiar with it being released under a royalty-free license though. Do you know the artist or something.

Then when they reply they don't, follow up with more legalese.

If you don't know them then do you have the rights to use it? Otherwise it's in mine, and really your best interest not to.

If they persist after that point:

I'm sorry but I cannot knowingly help you commit copyright infringement. It goes against everything I stand for as a designer. If you can get permission to use it then I'm happy to proceed, or if you want to use a different image that is royalty-free.

share|improve this answer
6  
I agree with what's been said so far. I would also like to add that a client won't necessarily worry about getting rights to use an image, in which case you could simply offer your services to create a visually similar image - that said this might lead to issues with what the client thinks the end result might be and what the end result actually is. –  Jenna Jan 31 at 17:20
2  
+1 for a spot on answer in my opinion. I actually came across a very similar situation, however my client was not as adamant about the image they wanted. I simply found a similar Royalty-free image and used that instead and they were happy. Perhaps if you take the steps Ryan laid out and find a similar image they will be happy. If not, drop that client like a hot potato!! –  ckpepper02 Jan 31 at 17:31
add comment

In my contracts I have clauses to the effect of "Client promises that all artwork provided for Designer is owned by Client, or Client has permission from the owner to use it. If Client is sued for copyright violation, Client will state that it was not Designer's fault."

Whether it's effective, well, I'm not a lawyer, but this at least specifies that you're putting the burden of proof on the client, and the client is signing it.

I would stonewall along the lines of Ryan's approach. "Other firms may be using [image]. I have no way of knowing if those other firms received permission from the artist. Without that signed permission, I legally cannot use it in your work. This is for my protection and for yours."

If the client persisted, I'd either fire the client or let the client fire me. It's not worth my livelihood.

share|improve this answer
3  
Well said. Parting ways is the way to go if they insist on being illegal. –  ckpepper02 Jan 31 at 17:35
3  
I verbally warn them against unauthorized use and I use a similar phrase in my web design contracts. Specifically, "The Client agrees to indemnify and hold harmless Consultant against any and all claims, costs, and expenses, including attorney's fees, due to materials included in the Work at the request of the Client for which no copyright permission or previous release was requested or uses which exceed the uses allowed pursuant to a permission or release." –  Ray Mitchell Jan 31 at 20:18
    
ooh, I like that. Particularly the bit about attorney's fees. Did you come up with that language or did you find it somewhere? and may I have permission to use it? :) –  Lauren Ipsum Feb 1 at 1:24
1  
@Lauren Ipsum It's language I got from a variety of contracts posted from other designers, and had reviewed by an atty client of mine. Here are some of the sources I used to build my broader client agreement --Smashing Magazine (smashingmagazine.com/2010/06/07/…), Sitepoint (sitepoint.com/bulletproof-web-design-contract), and this site from a web designer turned lawyer with downloadable contracts (webdesignlaw.com/contracts/forms-introduction). –  Ray Mitchell Feb 1 at 15:33
1  
@BabyDragon - At some level, I agree. In practice, mentioning this along with Corbis and iStock's willingness to sue infringers usually is enough for them to spend the $20 to buy the image. What also helps from a web design perspective, is letting them know up front that they should plan to spend between 3-5% of the project cost to purchase good photos. –  Ray Mitchell Feb 2 at 16:54
show 2 more comments

As Lauren Ipsum pointed out, an indemnity clause is a must have in every contract. You will rarely source all content so you're always taking a gamble.

That said, the clause will offer little protection if you knowingly violate intellectual property. If you show negligence and try to point at your contract in court you're going to get nailed. Maybe not every time but it's not worth the risk.

share|improve this answer
add comment

People I worked with once wanted to use a copyrighted image. I demonstrated leadership by informing them that we were absolutely not going to use it, and then I found a suitable, if less artsy, public-domain replacement.

Later, I created a desktop icon for us to use so that we wouldn't have to choose between a poor free one or a slightly better copyrighted one. The one I created was custom suited for our needs, and in my opinion, actually the best of all other options.

This was not a one-shot deal, but rather part of my overall strategy of showing preference for doing the right thing rather than doing the easy thing.

I think standing up for these sorts of issues is good for your career, and bad for the career of those who want to oppose you.

share|improve this answer
add comment

First identify the copyright holder of the media in question. This can be easy for published material with its original credits on the packaging, or it can take some detective work through Google's image searches to smoke that party out. Wikipedia can be helpful in ascertaining the copyright status of images it displays, and many have fallen into the public domain (though I'd double-check that from other sources to make sure). For protected work, contact the publisher and ask to speak with their licensing department. They can negotiate the fee for you, which will depend on a lot of factors related to how prominently the work will appear in public media and for how long. In cases where you were mistaken and the property belongs instead to someone else, they can help you locate that other party.

Doing this legally and above-board is best for everyone around. The images will invariably be of finer quality (the owners likely have cleaner, higher-resolution versions than any you'll find online) and confer greater prestige to your production than would second- or third-tier material you could scrounge up for free, plus everyone involved will sleep soundly at night. If you're lucky you'll stumble onto something magnificent and perfect for your project from an obscure artist that can be licensed very cheaply, your production will enjoy success and wide exposure, and that excitement [not to mention marketability] will then rub off on you, the art, its copyright holder, and its artist... raising all the boats in the water, so to speak.

share|improve this answer
add comment

Reminds me of one situation I had. I was working for the Dean's office, and the head of a new program wanted political images of U.S. presidents. The head of the department had earlier requested that the office pay for royalty-free images, and the request was denied.

I had earlier run through over a dozen public domain image galleries and pulled the best I could pull (from slim pickings) and made the best I could pull from there. But then the new department head said he had easily found royalty free images and he expected me to use them.

I explained, very simply, that "royalty free" means "lump sum" payment, as opposed to royalties per usage, but "royalty free" meant "lump sum payment," not "gratis" or "no payment needed." He said OK, but could I please use some royalty free images? He said OK without revising his expectation that I use royalty free images without anyone at the school paying for them, and made it clear that I was still delegated to use "royalty free" images without the Dean's office or anyone else at the school paying for them.

In that case I was lucky. He was supposed to negotiate with me exclusively through my boss, and my boss understood perfectly that I had searched through public domain image banks and already kept all the best images that I could find, and that the royalty free images were on a lump sum payment model only, and none of the ones he wanted me to use were gratis.

If I met the situation today, I'd say, rather than a you-message, "I don't care how reasonable you think it is. I don't feel comfortable, and I know I could go to jail." If I try to explain "I could go to jail" and a reasonable effort to explain matters failed, I would decide that it's not worth working with someone who has continued to insist I do X after I have explained, "I could go to jail."

I know that clients are not supposed to look out for our interests the way we look out for theirs, but a client that knowingly insists that you do something that could land you in jail can't be dropped too quickly.

share|improve this answer
2  
To be fair.. it's most likely a civil matter, not a criminal one. Jail wouldn't really be involved. Hefty fines could be though. –  Scott Jan 31 at 23:11
add comment

You say "no, sorry, I can not violate [insert your country here] Copyright Law. I'd be glad to help you license artwork legally."

You should also have a clause in your contracts along the lines of "all artwork provided by the client shall be artwork the client has full rights to reproduce. Designer will not be responsible for any artwork that was provided by the client"

UPDATE:

It should also be mentioned that if the client says:

Do a Google image search for 'XXX XXX XXX' and you'll see everyone is using it

...well, law aside, that's a perfect reason NOT to do it! I'd say "To make your business stand out, I suggest we not copy what every other business is doing"

share|improve this answer
2  
Plus one for the comment on originality. While that of course should not be the only argument you make to the client, it may help smooth over hurt feelings as you steer them to alternatives. –  AmeliaBR Feb 2 at 21:16
add comment

My gut says no. Say, I want you to assassinate a person, and we agree on a contract stating the killing is my responsibility and not yours. You do the deed, and we both get caught. I don't think there'll be any judge or jury in their right mind that will let you walk free and pin all the blame on me.

If you break the law, you are personally responsible, even if a contract you are under states otherwise. Such a contract may well be illegal in and of itself.

disclaimer: I'm no legal expert, don't pretend to be, and thus my answers hold no legal value and are my opinion only.

EDIT: The designer should refuse, preferably as per Ryan's answer. Since you can't use the image / have the client use the image without breaking the law, you can't resolve this legally.

share|improve this answer
1  
TO be fair it's more like the client has tasked you to shoot a target and that you make a contract with them stating the target provided shall not be a person. You still are looking down the sights... –  TruthOf42 Jan 31 at 21:40
1  
That's a terrible analogy. A better one would whether a valet parking attendant were responsible when unknowingly being asked to park a stolen car. I find it difficult to believe that any court would convict the attendant of theft. Possibly they could be convicted of handling stolen goods, but I doubt that would be in the public interest. –  Mark Booth Feb 1 at 12:01
add comment

Your Answer

 
discard

By posting your answer, you agree to the privacy policy and terms of service.

Not the answer you're looking for? Browse other questions tagged or ask your own question.