Licensing and Restrictions
Misconceptions abound about using stock images in derivative works. Since compositing is often about creating derivative artwork (see the sidebar "Derivative Works and the Internet"), it's appropriate to spend some time on this subject. The laws can be tough to interpret, so again, we strongly recommend you consult a qualified attorney who specializes in copyright law before making any decisions that you are not 100 percent sure about. This is particularly true if you intend to sell or distribute your composite images.
Works of art typically fall under the category of "intellectual property," and the copyright laws governing this property can vary from country to country. The United States agreed in 1989 to become part of the international union of countries that recognize and support the copyright stipulations of the Berne Convention. This convention states (generally) that there is an implied copyright to works of art from the moment of inception, regardless of whether a copyright notice appears on the work or in conjunction with it.
Digital photographs are no different. The copyright exists and is legally recognized from the moment the image is captured in your camera. To help move this process forward, some manufacturers, such as Nikon and Canon, are building cameras that have the option of imprinting a copyright directly onto your digital files from the moment they are recorded. This is done with the help of a metadata technology called Exchangeable Image File Format (EXIF) data.
A technology known as Extensible Metadata Platform (XMP) was designed by Adobe for use in a range of creative applications, and also works with EXIF data. It is built into products like Bridge and Photoshop CS4, as well as some third-party products. For example, using Photoshop's File Information panel (choose File > File Info), you can gain access to the full range of your image's EXIF data and other metadata (Figure 4.3).
Figure 4.3 Exchangeable Image File Format (EXIF) data dialog box
Copy control. Moreover, the copyright holder has quite a bit of control in how their images may be used. With respect to stock agencies, this control is manifested as licenses for acceptable use. These licenses vary from source to source, so it is important to understand the licensing language for a given agency before you download and use its images. This is particularly true of images intended for commercial use.
The general idea of licensing is that you pay a consideration or fee to the copyright holder for some use to which you both agree. A consideration may be monetary, or it may simply be a credit or citation that is visible on your work. Use can be limited by date, number of reproductions in a given medium, or even publication type. In some cases, a license may also restrict the context for an image or derivative work. For the most part, stock images are licensed so that they can be used for numerous purposes and by many individuals.
The copyright holder, which may be the photographer or the agency itself, ultimately controls all usage rights until the image becomes part of the public domain (discussed later in this chapter) or until the copyright is sold to another individual or entity.
Payment methods. There are two common payment models for photography: per-use and general licensing. Under per-use models, the price for an image is based on how it will be used, which typically relates to how many people are expected to see it. For low-volume locations or appearances, say a small town's local paper or a website that has little traffic, this can be an attractive option.
A common variation on the per-use model is to pay royalties. This is an ongoing consideration paid every time an image is used after the initial appearance.
For example, when a photographer sells an image to a magazine, the magazine's circulation (which provides an estimate of the number of times the photo will be reproduced), along with other important facts such as whether the image will be used on the cover or in an advertisement, is used to determine the pricing for the image. In the case of a cover image or feature article image that will appear only one time, in one issue, usually a fixed fee is requested, because a close approximation of the number of reproductions is known in advance.
However, things become fuzzier when an image is to be used for an advertisement, because it is not always clear from the outset how many times (that is, in how many issues or places within an issue) that image will be used. This is a case where royalty payments can ensure both that the publisher doesn't pay for more than it needs and that the photographer is compensated for every usage in the magazine on an ongoing basis. Typically royalty payments are sent to the photographer once a month or once a quarter, based on the image's usage level during that time period.
The general licensing model is considered a one-time pay model. It is usually promoted as royalty-free. Royalty-free does not mean an image is free for use, though. Instead, it implies that once a fee is paid for an image, use of that image is unrestricted within the limits of the license. In practice, this relates to the number of times the image appears in the context of a given work or project. Additional projects usually require additional licenses. Paying once for an image does not automatically mean it can be used over and over in different works.
A third payment method that is used by some of the more popular agencies like iStock is the subscription model. Instead of paying per image, you can purchase a specified number of credits (sometimes called points) per day for use over a specified period (usually 3, 6, or 12 months). For example, you could purchase a subscription that would allow you to use up to 30 credits per day, for 3 months, at a cost of roughly $900. Most images of medium or high resolution typically cost between 5 and 15 credits each, so that gives you an idea of how many images that $900 would buy you.
Many subscription-based sites also let you pay for a specified number of pay-as-you-go credits. If it makes sense for you, you can purchase 30 credits (to be used at any time during the course of 12 months) for roughly $40, depending on the stock provider and any incentive programs it may have. Figure 4.4 shows a simple example.
Figure 4.4 Pay-as-you-go models are often a cost-effective way of purchasing stock images over time.
It's important to remember that licensing also comes into play with respect to subscription pricing. Unlimited licenses typically require you to pay the equivalent of an extra 50 to 100 credits per image. So, carefully consider your intended distribution and uses when purchasing subscriptions, and evaluate how many images you are likely to need for your upcoming project(s). Typically it's wisest to pay as you go unless you are working on a large number of compositing and media projects that require large numbers of stock images.
Free Sites and Fair Use
In recent years, a variety of free licensing options have become available, giving artists more latitude in choosing how their images are used by others.
Creative Commons. One very popular version is framed by the nonprofit organization Creative Commons. The Creative Commons organization has structured several licenses to allow for a variety of uses and is quite a boon to popular photo-sharing sites and their contributors. The Yahoo-owned Flickr.com, for example, allows photographers to choose from several licenses for distribution and protection of their images, thus giving buyers more options as well.
As with for-pay models, free images can be rights-restricted by the copyright holder. Effectively, this means you still have to pay attention to the allowable uses for any images you purchase, regardless of the payment model being used.
Fair usage. Fair use can be a complex subject, and it has been the focus of many ongoing debates. Fair use revolves around the presumed right to use "found" images or works and create derivative works without paying the copyright holder. According to U.S. copyright law, fair use is restricted to using portions of a work ". . . for purposes such as commentary, criticism, news reporting, and scholarly reports." That quotation itself, for example, is considered fair use and comes from the U.S. Copyright Office website FAQ at www.copyright.gov/help/faq/faq-fairuse.html.
There are many interpretations of fair use, but we recommend that you avoid using images under these circumstances, if possible. When in doubt as to what constitutes fair use for a given image, talk to the copyright holders and find out. Don't make assumptions that you will be legally covered, even if you've seen a comparable image and concept used by another artist.
Public domain. Another alternative for acquiring content is to use images that are known to be in the public domain. According to the U.S. Copyright Term Extension Act of 1998, only works produced and published prior to January 1, 1923, and that have not had the owner's copyright legally extended, are considered public domain. The copyright holder may also choose to move a work into the public domain before the copyright expires, though this is somewhat uncommon.
Many old movies, as well as "public service" videos from organizations like NASA, also fall into the category of public domain (Figure 4.5). This means you can grab an individual frame from a public domain movie, and use it as part of your composite, the same as if it were a still.
Figure 4.5 NASA provides most of its images and movies as part of the public domain, and requires only an acknowledgment of origin in most cases. Here a frame was pulled from a high-definition Hubble Space Telescope video.
Distinct from free-use licenses like those provided by Creative Commons, public domain images carry no restriction on use or reproduction and may be used across many mediums by all individuals who care to use them. There is no longer a copyright holder for these images, so use is truly unlimited. Here again, we recommend you not make assumptions about works that you believe may be in the public domain. Find out for sure whether the image you are considering is in the public domain before repurposing it for composite imagery or other uses.
As with other situations in life, if a free stock site offers something that seems too good to be true, it probably is. When in doubt, go with a reputable stock agency so that you can be certain of the terms and who holds the copyright.
Types of Images Available
As noted earlier, many stock sites offer illustrations and computer-generated graphics in addition to photography, and several have high-resolution clips or stills from movies. The creative possibilities are virtually endless. For example, you can pull a single frame from a movie released in the early 1920s and build a modern scene around an historical character or famous actor.
Illustrations may also have a place in your repertoire; you can use them as guides for layout, as concept sketches, or even as art within your composite. Also, quite a number of 3D models are available that you can use as foundations for your composite imaging projects. With the new 3D capabilities in Photoshop CS4 Extended, not only can you match the lighting and color of your 2D scene and 3D model, but you can even paint directly onto the model! We'll cover 3D techniques in more detail in Chapter 9, "Creating 3D Content."