To Watermark or To Not Watermark – Again! & Again! & Again!
That’s right! The very next day after I posted Part 2, if you will, of this series I had to send another of my cease and desist demands to another local company for using the same skyline shot of the City of Hamilton. This time it was to a music production and recording company. That one actually hurt me the most at first because it seemed like the proverbial artists stealing from another artist scenario. The sting was only tempered by the fact the old adage, “When you’re good, you’re good!” is appropriate.
Within an hour of receiving my letter, they cordially notified me that they removed the picture from their website, and they certainly did.
December 1, 2015, I had to send a cease and desist letter to another local real estate agent who had used the shot on her website. In this instance, the bottom of my shot had been cropped to eliminate my watermark. There’s no way I could say that I didn’t see it comin’ (back on November 15, 2015, someone claiming to be American and going by the online name of EstaVeritas also used the same cropped version in their seemingly non-commercial post on reddit to salute Canadian cities – how nice)!
As with the previous faction to use that specific image, the recording studio and the latest real estate agent put blame squarely on some unidentified expletive web designer for using the picture to represent the city – being that these are local enterprises.
I know, I know, some of you might be rolling your eyes to the heavens right about now or saying, “Pfff! Yeah . . . right!”
Well, just in case, this post is directed primarily at anyone who intends to use a graphic designer or web designer for producing anything with an image. Secondly, it’s aimed at artists who may be providing graphic design or web design services. Thirdly, this post is a caveat to other artists who produce good work, and leave it out there on the World Wide Web for all to see for whatever reason.
When you need images or graphics to illustrate or decorate something, a reputable designer will not put you at risk of having the pants sued off of you by ripping-off photography, illustration and design elements from other sources. They ought to know better. It is your responsibility as the client to either provide those elements to your designer or verify that the ones being used aren’t infringing on someone else’s copyrights, even under the “fair use” provisions of copyright law in your land.
During a consultation – there really ought to be one, your designer should inform you that to generate such work ethically and legally, requires X amount of additional graphic design work, photography, modeling, painting drawing, image licensing options, subcontracting if the artist is incapable of producing such work, and so on, and so on that will expectedly drive up your costs of launching something as common as a website or what have you. That’s just the face-to-face discussion of a consultation process, then there’s a written agreement that should come into play.
In the MOF Commissioned Web Site Design Agreement, I have a section titled “Standard Web Site Package Elements”. One of the sub-clauses states:
Photos and other miscellaneous graphic images supplied by the client (up to an average of 1.3 included per page in standard Web sites and “regular” online store packages, in addition to masthead and top-of-page-graphic). Colour originals larger than 5” x 8” are extra.
Notice the very last two words there.
Further down, I include the section “Copyrights and Trademarks”. It says:
The Client represents to the Artist and unconditionally guarantees that any elements of text, graphics, photos, design, trademarks, or other Artwork furnished to Modes of Flight for inclusion in the Web pages are owned and by the Client, or that the Client has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend Modes of Flight and its subcontractors from any claim or suit arising from the use of such elements furnished by the Client.
If stipulations to this effect are not in your agreement with a designer, you need to ask about them. Keep them honest.
Art purchases – even of these kinds, are typically major investments. Don’t take them lightly. Don’t be in a hurry to launch something and just pay up. Plan ahead, educate yourself and ask questions. Don’t put yourself at risk!