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How to avoid legal demands of Getty Images and other photo copyright problems
The best way to avoid copyright problems and legal troubles with Getty Images is to avoid using their images. Or at least that would seem to be the answer at first. You just ignore any pictures by Getty Images; don't buy them, don't use them on your website, and don't copy them. The problem is it's not as easy as that, and you might end up with a legal letter arriving with a demand for seemingly extortionate amounts for images and photographs of which you are accused of "UNAUTHORIZED USE". In the words of some people who send out the Nigeria Scam "this letter may come as a surprise".
Well, if you've stolen a photo from the Getty Images Photograph Library, then more fool you! Their images are copyright and you shouldn't copy them! However, chances are you didn't steal any images, at least not knowingly. What is more likely is that you fell into a trap. These traps are easy to set. What happens is that Getty Images is a company that allows some people to use their pictures on their websites, and then some other people steal them and publish them on free photo sites. You arrive in all innocence and grab a few images, and then GOTCHA! Getty Images can accuse you of stealing their photos and can charge you extortionate sums.
One of the more common ways to fall foul of this Getty Images mode of money-making is where you get a free website template and use the supposedly free images on it. Time goes by and long after the originators of the template have disappeared, along comes Getty Images and sends you a legal demand for a few thousand, probably for some postage-stamp sized image which you thought was public domain. So, even if you did nothing knowingly wrong, you're being invoiced for a huge sum which you might not be able to afford. Well, what can you do about it?
What do you do if you receive legal demands from Getty Images? The first thing to do is to try to identify which images you have on your site that are alleged to be copyright infractions. Remove them at your earliest convenience, replacing them with substitute photos which you have taken yourself with your own camera!
I am not a lawyer, but I am in touch with a lawyer and also I've done some of my own research online and from what I can see, in most countries, simply removing copyrighted images on request is sufficient to avoid any further problems. It's known as a "Cease and Desist" notice, and the usual way laws work in most countries is that the copyright owner sends a Cease and Desist notice to the copyright breaker, and only if they fail to comply can anything further be done. Even the much discredited Digital Millennium Copyright Act in the USA allows this. In the UK it's a little bit different, and from what I have heard, the copyright holder has to be able to prove several things in court in order to get awarded anything. They have to prove they own the work, and that it has originality, and that their copyright has been infringed (for example by the copying of the work in its entirety or if a key element has been copied), and there has to be a realistic assessment of the value. If a copyright infringement is proven in court, the amount owed is then of that order of amount, and NOT some arbitrary extortionate amount levied as a punitive fine upon those whom the copyright holder has decided to persecute! The exception to this is where the copyright infringement is judged to be FLAGRANT. However, to be classed as "flagrant", generally the behaviour of the guilty party has to be of a cavalier nature, for example copying a large amount of valuable work and then completely disregarding Cease and Desist notices, etc. That's what I understand of it, anyway. For more about the important nitty-gritty of intellectual property law situations, you should consult an expert lawyer, for example Liz Ward
To illustrate the extent of damages idea, if you wilfully stole a front page exclusive newspaper photo and sold it to a rival paper, the court would probably award the aggrieved party a few tens of thousands, whereas if you stole a fairly average nothing-special photo of the type you see on free photo sites, the award would probably be more like a few tens of pounds. In such cases the copyright owner might not bother to go to court.
Now let's get this in perspective, Getty Images is a place where there are a lot of quite nice images, but most of them are just good photos rather than being exclusive front page news. It's the job of the court to decide if the image or two that you ended up with are worth more than your holiday snaps or not.
From stories I've seen on many websites raising the issue of Getty Images and their legal demands, the legalistic letters are phrased so you could be scared by them. This does not mean they have any legal basis. You should seek legal advice. The scenario reminds me a bit of a scam which was alleged to have taken place regarding Club Europa Search Engine. It was said that the marketing model was to send out invoices and frightening letters to intimidate and bully the victim into paying up, regardless of the legality of the complaint or the (un)soundness of the stated legal case. Many people were so scared they paid the money rather than risk the threatened increase in fees and other stuff. Oddly, it isn't illegal for companies to put the frighteners on you and to make claim that you have got to pay them some stupid amount or else suffer various increased penalties. However, they are not allowed to use harassment, and if they overstep the line they can be found guilty of breaking the law. It's important that you know your rights. In some scams, you may be offered a discount if you pay up now rather than suffer the heavy mob being sent in. If they do something resembling this, you can have a good idea that it's a scam.
Yes, maybe. But this isn't a scam, is it? It's Getty Images who are believed to be an honest reputable company. We'd like to think so. Paul Getty the famous millionaire was known to have a payphone installed in his hall, so his guests had to pay for calls. Good for him, I say! However, let's get this in perspective: Paul Getty did have a payphone. What Paul Getty didn't do was to have an ordinary-looking phone and then hide behind the curtain and spy on his guests making phone calls and then jump out and say "Unauthorized Use! You owe me $2000 for that call!"
Do you think Getty Images is carrying on in the spirit of Paul Getty? Or, are they behaving such that their founder might be inclined to haunt them?
We don't doubt that what they are doing is legal, by the letter of the law, but some people have asked (on various websites) whether it is ethical. The question of copyright is generally agreed on by everyone. Don't copy something that's someone else's copyright. What's considered more dubious is the notion that a company can send spy robots out looking around the Internet, scraping people's websites and downloading other people's images, and on finding any perceived minor indiscretions slap a legal demand on the owners of the site, a demand what states that even if you remove the offending images you'll still have to pay thousands.
Imaginary hypothetical example: Supposing a shop was down on its luck and in fear of bankruptcy, its managers might decide on a cunning plan to make some money by a legal scheme as follows: Instead of allowing customers to take away the free glossy brochures, the brochures would instead be charged for, but this fact kept hidden. The stack of brochures could be deployed in an ambiguous way, maybe near the exit door, and near to signs saying "free" because something else was free, and then the security system lies in wait. You go into the shop and on the way out you grab a brochure which you thought was free. Then, as soon as you exit the shop, security staff arrest you for being a thief! "You stole that glossy brochure! These cost us $2000 to make. You'll pay the price". OK, the tooling/commissioning cost of the first batch of brochures was $2000, say, so it might be that legally they have got you there. Are you going to pay up? Accept the shop's offer of 20% discount on the fine? Well you might be scared by the heavy-handed tactics, or you might stick to your own principles, but one thing's for sure: You'll never shop at that place again. Not only that, but within a few weeks when the word has got around, no-one will be going to that shop. The shop's last-ditch short term plan of stinging a few customers for $2000 backfires and the appallingly bad PR results in a hastened bankruptcy.
Be aware that if an image is copyright someone else, and they ask you to remove it, you should. If that request is cloaked in loads of nonsense that looks suspiciously like a scam, don't ignore it; it's still a valid "Cease and Desist". What happens next is up to the accusers. They might decide to pursue such cases, or they might decide to be more sensible and avoid getting into legal cases which they might embarrassingly LOSE. Remember that the alleged scam to do with Europa was based on the idea that if a few people were scared into paying up, it would easily cover the costs of the paperwork, regardless of right and wrong. The expression "money-making racket" is something I've seen written in some places.
If you ever pay a threatening demand, on the basis that it will go away or that you'll get a "quiet life", it probably won't work. You'll more likely attract even more heartache and trouble. Organised crime protection rackets also rely on the victim being scared into paying up on the basis of the "quiet life" misconception.
With a legal case where you are being accused falsely, it's often best to refrain from contacting your accusers. They can be typically unsympathetic and may use your words in evidence against you. It may also be another opportunity for bullies to scare you further. So, my advice is to avoid making contact with your accusers. However, in contrast, you SHOULD contact your own lawyers, and the Department of Fair Trading, and where appropriate the Police, as you may be surprised to find you have rights against some types of attacks, and your attackers may have broken the law in some way or other, especially if they have overstepped what they are allowed to do.
I recommend that you do not phone 0800 279 9258 or +44 20 7544 3400 even if you feel the desire to do so because it will cost Getty Images money to receive the call, and I recommend that you do not email firstname.lastname@example.org or email@example.com nor should you make a nuisance of yourself, as that is surely not a right and responsible way to carry on.
A lot of law is to do with CASE LAW. That is, legal cases that have already been tried in court. In the matter of Getty Images and their vast numbers of scary letters, at the time of writing, some posts on some forums stated that no cases had yet gone to court. This is even stated at the Wikipedia entry about Getty Images.
Even if you can't afford to fight a legal case against a huge corporate entity, there are some people who will fight. What if they win? This would then set a precedent for other cases to be thrown out of court.
Anyway, here are a few helpful references I have found which might help:
www.copyrightinfringement.org.uk - advice about the legal situation and what can be done about it
http://blogs.wefrag.com/Loyus/ - was http://blogs.nofrag.com/Loyus/2006/oct/06/21765-menaces-getty-images-getty-images-threats/
http://extortionletterinfo.com/ - The Getty Images Settlement Demand Letter
Getty Images Stock Hits Multi-Year Lows (GYI) http://www.247wallst.com/2007/08/getty-images-st.html
This whole business reminds me of the stuff to do with SCO and Caldera which produced howls of derision from the Linux community. It was alleged that the SCO business model was based on suing people rather than on creating anything useful.
It's also interesting to note that various searches on Google to do with the Getty Images fiasco tend to come up with unsolicited "image search" results, which of course contain images. Now I wonder, are those images copied from Getty Images?, because if so, then maybe Google might be sued by Getty Images? Imagine that, Google sued by Getty Images? No?, so Getty Images are only going after easy targets who they can frighten and persecute into submission? Surely not?! Hypocrisy, did someone say?
Update on the "Getty Images only chases easy targets", it does indeed appear that Getty Images will persecute small people, but not huge corporate entities who might be able to fight back. It has now been looked into (2012/02) and found that Getty Images won't dare take legal action against Facebook, even though Facebook grabs ownership of the copyright of all of the stuff that individuals send to them, and Facebook is profiteering from the material which they have grabbed. It is commercial use, big-time. This then puts the whole Getty Images copyright issue into question, as Facebook now claims to own the copyright to images which Getty Images might be suing YOU for infringing. As Getty Images allows Facebook to use their images, and as Facebook claims the copyright to anything on their site, it could be argued in court that Getty Images have lost their copyright. This would then invalidate various other court cases they are involved in.
Some contributors recommend abstaining from / avoiding / boycotting Getty Images, some citing valid alternatives. The usual response is "yes but they have also now been taken over by Getty". In fact, even some FREE photo resources have been bought out by Getty Images, which means that you could have photos which you got when they were free and now you'd expected to pay punitive fines for having them. Another point is that you can't ever be completely sure that ANY supplier of photos is free of the problem. It is in theory possible for someone to own some photos and have their mates set up in business to distribute the photos freely and then, when a lot of people are using them, sue them all! It's that type of litigious business tactic which brings the intellectual property market into disrepute.
Anyone in the affiliate business should especially beware! Images on your merchants' websites might not be owned by the merchants, and could easily have got there by some obtuse route from Getty Images. You might say you can trust the merchants, but that's no guarantee, as the merchants themselves could have been fooled by some other site claiming images are free when they are not. A safe route to getting a merchant picture is, wherever possible, to take a photo of the merchant's shop yourself! Then you can be sure it's not tainted.
There appears to be no way of identifying any particular image as a Getty Images copyright image, although I've noticed some of them contain the TEXT "Japanese Print Flags", this is far from being a definitive test. Doing a search/find on all files on your website and trying to delete or replace all images with "Japanese Print Flags" in them won't necessarily solve the problem. They might change that, and it may be that images other than Getty have that in. In a way, it could be argued that it pays Getty Images to keep it a secret which images are theirs and which are not, as then it's easier to have a lot of cases of people to charge for unauthorised use. I'm not suggesting that such a cynical ploy is in use, although I have read on other sites some people suggest such a thing!
Also, be careful of small print in contracts, as you might find that even if you have paid Getty Images for the use of some images, you are no longer allowed to use them for some purpose or other for some reason or other. You can't be sure. Also, even though you can get vast numbers of high quality images FREE or almost free on the Internet and on giveaway CDs, you have to be careful about the copyright conditions. I have always been VERY FUSSY about this, and you can see how Copyright Can Lead to Neglect as I refuse to use stuff that's got the wrong copyright conditions imposed on it.
Ultimately there is one source of images you can trust. If you have taken the photos yourself, with your own camera, you own the copyright. It is said that with modern digital cameras anyone can take good photographs. This undermines the market model of charging a lot of money for pictures. ... It was then that I invented a possibility by which this process could be widened and there might be a way to Get Rid of Getty Images by creating in effect an open-source creative-commons distributed photo gallery resource and so destroying the market model of Getty and Corbis, in the same sort of way as Microsoft's market is being gradually destroyed by Open Source and Linux
If you have taken photos yourself with your own camera, they are yours, and Getty Images can not compel you to sell your rights to them, so the boot could be on the other foot, so to speak. What if you found some of your pictures had somehow ended up being inappropriately on the Getty Images photo catalogue? Considering what I have seen Getty Images try to do to folks with their legalistic campaign, I would suggest that it would be unethical to sell images to Getty Images, as you might possibly then find your images being used as a tool of oppression against other folk. In a way it doesn't matter how much Getty Images offer you for your photos, it's a matter of right and wrong. This has a feel to it like the matter of "conflict diamonds". It's interesting to note the fact that NASA has taken the opposite stance to Getty Images, and has allowed public usage of almost all of the amazing NASA images in a free-for-all way. Well done to NASA! Of course not everyone can afford to do that, and there has to be a reasonable balance.
One of the more picky legal arguments I've seen is that Getty Images are in the business of having robots hunting the Internet to spot pictures which they can sue you for. The name of the robot is said to be PicScout. However, to access your site, the robot must access it, which actually costs you a small amount. In theory you could legally forbid it from doing this. As the robot can't read the notice forbidding it, it would then use your bandwidth against your express permission, in which case you might have a case against Getty Images! Also, if the robot downloads copies of your images from your site, surely it is "using" your images? Is that allowed?
In consideration of how many of these threatening letters are reported online, it makes me wonder how many suicides have been caused by such behaviour. It's the small people who are mostly the targets, and in some cases it may have pushed them over the edge. Accidentally causing emotional suffering and a few deaths may in itself not stop the problem, but if a few no win no fee cases of Malicious Prosecution go through it may cause the strategy to have to be reconsidered. For example, see www.law.com/jsp/article.jsp?id=1082482927011
In my opinion, the owner of an image has a right to say what's done with it and what isn't. That's fair enough. However, I believe there is a reasonable way to administer intellectual property rights, as opposed to an unreasonable way. People do not like to see unreasonableness enforced, especially in a heavy-handed way. Justice may yet be done as good and bad PR in the world has an effect. If you don't like what Getty Images has done, it's up to you to vote with your feet and the market may change.
The chances are that there's a particularly good reason you're looking at this page, and that involves the fact that you run your own website. If you are receiving threats and unfair demands from Getty Images, you should copy the address of this page and add a link from your own website to this page. Together we may have solidarity against a common enemy.
What else can be done about the Getty Images problem?: As well as avoiding Getty Images in terms of usage, both directly and indirectly, you can also lobby television company and other media owners to avoid Getty Images. Whenever you see "copyright Getty Images" or "source: Getty Images" being put on images on websites or on production media, write to the company involved and point out what you feel about Getty Images. Many of these media companies consider PR quite important and some may refrain from using Getty Images rather than risking looking unwholesome. It's a bit like avoiding GM crops, or conflict diamonds, or animal tested material, or products which have been tainted by their association with corporate abuse of people. Media owners may be interested to know: there are many alternatives to using Getty Images.
A further proposal is that an Alternative Image Catalogue be set up with Creative Commons / Open Source licensing, not merely so as to Get Rid of Getty Images but also to provide a freely available resource for the public good, to do for images what Linux is doing for Operating Systems.
Incidentally, if you're wondering about the photos on this page, they are entirely GETTY FREE. I know this as I took them myself, and they are part of the page of Piccies. I am the originator and copyright owner. You too can take your own photos. That may yet be the way to beat this oppression. In fact, it may be possible to create a banner to stick on a website which says "Getty Images Free", or a "Getty Free" stamp, like on food items that are Gluten Free - a sign of wholesomeness and an indication that no poisonous gluten is included.
The material on this page is a personal opinion and is not to be considered legal advice. This page was correct at the time of writing. If anything has changed, please write in and say. As the purpose of this page is to encourage good practice, any reform or improvement in practices at Getty Images will be welcomed and the page amended with a proper acknowledgement of this. If you have any additional resources which you feel should be included, please say. Any trademarks mentioned on this page are acknowledged and are owned by whoever owns them. The pictures on this page are copyright (C) Zyra, and are included to decorate the page which would otherwise be just text, however the idea also shows that you can use a camera to take pictures and decorate your own website without having to buy any images from Getty.
I am not a lawyer, however Liz Ward of Virtuoso Legal is. She's a specialist lawyer in the field of intellectual property. How about that?