Watch Out for Big Brother: Getty Images Strong Arms Unsuspecting Small Businesses

07 Sep 2014

small business questions

Two weeks ago, one of our clients received a letter from Getty Images requesting $780 for an image used on their website. Getty Images claimed that my client did not purchase the license required for use of the image and thus they were in violation of copyright law.

As a small business owner, I would be confused and a little freaked out by the accusation that I violated copyright law – and, of course, the significant amount of money requested to correct the issue.

Because I found the image for my client, I assumed responsibility for the claim and took action accordingly. This post is my ‘heads up’ to all well intentioned small business owners, marketers and entrepreneurs who are managing their online presence, but may be unaware of how big companies like Getty Images can line their pockets with your hard earned dollars…

The Claim

The seven page letter my client received was an ‘unauthorized use notification,’ which outlined the Getty Images Licensed Compliance Program in coordination with copyright law followed by a list of actions that must be taken within 14 days of the letter issue date, details of the issue in question, ways to submit payment, and a list of Frequently Asked Questions.

getty image demand letterMy immediate reaction was a feeling of overwhelm. The letter contained a lot of legal jargon, most of which would require an attorney to decipher. Getty Images also included a screen capture of the image as it was used on my client’s site and further compared that to the image in the Getty Images catalog. The list of FAQ’s was essentially a way to let the business owner know that any action they would take to correct the situation, other than paying Getty Images in the full amount, was out of the question. The only recourse offered was an email address if the business in question believed they received the letter in error. After researching the image in question, I find that the actual cost for the image was $240 for one month of use.  The letter stated that the cost for the image is $780 – over three times as much as much as their online catalog price.  They included a line in the letter stating: “Getty Images incurred additional costs of $400 per image related to the pursuit of this matter; we are currently waiving this cost, as we understand this unlicensed use may have been unintentional.” It’s unclear why they are charging $540 more for an image if they are waiving the fees ‘to pursue’ this matter. Not to mention that three days later the price for the image on their site changed to $460. And, the rights did not include social media usage, which requires an entirely separate license.

Now What?

What’s a business to do? I would assume that some businesses may just pay the claim to relieve any legal liability. Others may research it or ask around. Some may have a lawyer on retainer or know someone who can give them legal advice.  No matter what, Getty Images makes a convincing case. I did some research and found that this is commonplace – they’ve done this to thousands of businesses.  Most of the blogs and articles to assist businesses in responding to the claim advise to either hire an intellectual property attorney or respond to the letter by asking a few questions and then requesting an extension on payment in order to buy more time.  All sources said to remove the image from the website immediately, which my client had already done upon receiving the letter.

Refuting the Claim

My initial approach was to respond to the letter – using the ‘if you think you received this letter in error’ email address supplied by Getty Images.  I explained that I was contacting them on behalf of my client and that we removed the content in question from the website.  I further explained that the image was not found on the Getty Images site, but rather from Google and labeled as a free to reuse image. I included a screen capture, as it was at the top of the Google search results for reuse.  Additionally, we checked the image for a digital watermark and there was none. We also checked to see if the similar image checker would pick up the image on the Getty Images site – and it did not.  Finally, I said we would refrain from using the image going forward if they would please relieve my client of any liability in this matter.

I received a response the next day from someone on the compliance team at Getty Images. He simply stated that we did not have the license for the use and reiterated some of the language from the original letter.  He made an offer to lower the amount due to $565 as “full and final settlement” of the demand and said it must be postmarked within seven days.  He ended with threatening that Getty Images reserves the right to seek costs in the event that they do not receive payment by the deadline.

That same day, I noticed that the image was removed from Google’s search results…

I figured it was worth a shot to try to respond once more. I explained my case again and noted that I could have chosen a variety of images to fill the need, however I chose that specific image because it was labeled for reuse and there was no digital copyright watermark on the image.  Furthermore, since we called this matter to the attention of Getty Images, via the screenshot sent on August 26, we noticed that the image has now been removed from Google’s ‘labeled for reuse’ search results. Thus, we actually helped Getty Images to prevent future infractions regarding this image. I asked them to kindly drop the matter indefinitely.*

I received a final response that they would pursue the matter with my client directly.

The True Legalities

jmt law

Jan Tamanini, JMT Law

At this point, I realized my efforts were fruitless.  Having already spent a few hours researching information, corresponding with my client and pursuing the matter directly with Getty Images, I did not want to spend more time – or money – to try to hire an attorney to handle the matter.

Beside myself, I sought the advice of small business attorney, Jan Matthew Tamanini of JMT Law, LLC. She was gracious enough to lend me insight for the purpose of this blog. Tamanini has experience responding to claims with Getty Images and confirm Getty is a “patent troll.”

Tamanini said the first thing a small business should do, when faced with such a letter, is to talk to an attorney who has some familiarity with copyright law.

“When a company like Getty Images is making a claim, the odds are 50/50 that it’s legitimate. An attorney can formulate a response to Getty, which may ultimately drop its claim altogether,” said Tamanini.

She also said that if you decide to write back to Getty Images, do not apologize and do not admit liability. Be careful not to give them any extraneous information, either.

Regarding the overall use of stock images on the web, Tamanini warned, “you’re taking a big risk, no matter what website you find that says an image is ‘free’ for use (other than from the actual artist/photographer who is the copyright holder giving permission).” She also said that using something from Google’s “free for use” image search/site isn’t equivalent to due diligence.

The Bottom Line

If you receive a letter from Getty Images, consult an attorney with experience with intellectual property. You may end up paying something – to Getty Images, the attorney, or sometimes both – but the amount would likely be less than if you would pay Getty Images its original demand.

Tamanini said that Getty Images used to concentrate on going after the big players, but it’s now found a sweet spot in the little guys.

“Patent trolls can use automated web crawlers to find these images; it doesn’t cost them anything to do this. Getty tends to keep its demands from small businesses under $1000 because it knows small businesses don’t have the money for much more than that, but most small businesses would rather pay that amount than hire an attorney to fight it… A letter from a lawyer can make all the difference.”

Resources for Small Business Owners

If you’re looking for some resources for free images, there are free stock sites, but before reusing content that you’ve found, Tamanini said to verify that its license is legitimate and check the exact terms of reuse stated in the license. “For example, many licenses require that you give credit to the image creator when reusing an image,” she explained.

Google itself says that they have “no way of knowing whether the license label is legitimate, so we aren’t making any representation that the content is actually or lawfully licensed.”  “In other words,” Tamanini explained, “Google is an aggregator, not a licensing agent. The user, and the user alone, is responsible for ensuring that the images used are freely available.”**

If you want a list of free stock photo sites, check out this post by my friend and colleague Jennifer Grigg of Social Dragon Marketing.

If you pay a subscription fee to get images from sites that do the due diligence or license the images for reuse, Tamanini said you’re less likely to have Getty Images or another troll zing you.

Web partner, John Webster, recommended two subscription sites that are reasonably priced for the small business budget: graphicstock.com and clipart.com.

Take Action

If you’ve received a letter from Getty Images, you’re certainly not alone. You’ll need to take appropriate action, but with the steps I’ve provided here, it should be less burdensome then fulfilling the original demand.***

Please help me spread the word to other small businesses.

Notes:
*The image has since re-appeared on the results, this time by different sources.
**Google’s terms
***In June 2015, we reached a resolution with Getty Images. Ultimately, we paid their collections agency $300 as a settlement in the case. 


Comments

  1. I have been following the Getty stock photo issue for some time, and remain perplexed by the apparent heavy-handed copyright enforcement tactics. Google the words “Getty extortion” and you’ll find a bounty of websites and blog posts focused on the issue. Getty seems to have created boiler rooms to search images (tagged with some kind of hidden GUID?) and is contacting individuals and companies in violation. The demand fee appears to cover the license *plus* the boiler room operations expenses. Regarding the $240 fee for the image, I checked in with one of the stock image companies that I use and was told you apparently published a “rights managed” image vs. a royalty-free image. That explains the high fee and the one-month usage term.

    Yes, you made matters sticky by sharing how and where you sourced the image. As you noted, Google is an aggregator, it is not a licensing agent. It sounds like Google’s fair use feature is flawed. I would avoid publishing any image unless the licensing was secure via download in your account at a commercial stock photo site. I would also be careful with free photo sites, including Flickr Creative Commons images and various non-commercial photo sharing sites. There’s no licensing standard for photos and graphics in the “public domain.” Every site and image owner seems to have different (and often confusing) rules and requirements for “free” usage.

    Finally, from my perspective as a public relations and social media consultant, it’s not clear if Getty has fully calculated the long-term PR risk. The company certainly has the right to enforce its copyrights, but is this potentially a Pyrrhic victory for the brand?

    • Rachel Strella Says: September 8, 2014 at 2:12 pm

      Hi Joel,

      Interesting what you found out. And thanks for checking on that.

      Ironically, this was one of the only times that I used a ‘fair-use’ image from Google. I typically use free clip art sites like freedigitalphotos.net.

      In terms of the PR perspective, I suppose there’s ‘no such thing as bad PR.’ Maybe. Either way a big company like that is making tons of money on little guys. I am sure they don’t really care. Yet…

      Thanks for reaching and chiming in!

      • What I still don’t understand is let’s say I purchase an image from Getty and use it on a site that is privately registered and no clear indication of a connection to me or my company. Or use it on a client site that I manage. How does Getty connect the dots? It’s murky.

        • Rachel Strella Says: September 8, 2014 at 2:58 pm

          I’m sure in their 100 pages of crap, there’s something in there about republishing images on private sites.

          • That why some of the writers just say take your business elsewhere. Getty and iStockphoto (owned by Getty) are not cheap, although iStock just announced new pricing that is competitive with the rest of the world. My most recent “find” is a new service spinoff from Fotolia, Dollar Photo Club. All images are $1 and all images are max resolution. Plus purchased credits never expire, a practice that seems to defy a coherent reason (yes, I have asked many times).

          • Rachel Strella Says: September 8, 2014 at 4:10 pm

            Neat resource. Thank you, Joel. I’ll check it out!

      • Teresa lord Says: January 15, 2017 at 3:15 pm

        What about http://www.freegitalphotos.net

        As images there when you click go to Istock

        Which was acquired by gettyimages

        • Rachel Strella Says: January 22, 2017 at 5:00 pm

          Indeed, Teresa. Free Digital Photos is now pushing their ‘paid’ area as the main photos when you search. Thank you for your input.

  2. […] Watch out for Big Brother: Getty Images Strong Arms Unsuspecting Small Businesses Stories like this are always so sad and frustrating because too often, people who *did* follow a prescribed set of best practices to ensure proper usage, get hit. […]

  3. […] example, Rachel Strella, founder and owner of Strella Social Media, tells of a recent instance.  A client received a $780 bill for using a Getty image on a website without […]

  4. […] example, Rachel Strella, founder and owner of Strella Social Media, tells of a recent instance.  A client received a $780 bill for using a Getty image on a website without […]

  5. […] example, Rachel Strella, founder and owner of Strella Social Media, tells of a recent instance.  A client received a $780 bill for using a Getty image on a website without […]

  6. […] example, Rachel Strella, founder and owner of Strella Social Media, tells of a recent instance. A client received a $780 bill for using a Getty image on a website without […]

  7. […] example, Rachel Strella, founder and owner of Strella Social Media, tells of a recent instance.  A client received a $780 bill for using a Getty image on a website without […]

  8. John Webster Says: September 17, 2014 at 11:53 am

    Here is a great website that will help one check to see if an image is owned by one of the stock photo companies – http://www.tineye.com/

  9. Well that is quite unnerving. Sad that they go after small businesses in this fashion. Would be nice if they gave some grace especially in Rachel’s case when she helped them by letting them know there was an image on google that was not marked as restricted. I have used Fotolia.com for several years and have been happy with the cost and the selection.

  10. Thanks for sharing that experience, Rachel. My go-to source is depositphotos.com. They have a reasonably-priced subscription package for small-volume users, or you can buy image packs offered periodically through MightyDeals.com ($100 for 100 images or $160 for 200, good for one year). I have occasionally gone the google or bing image search route, but will be far more careful with that in the future, thanks to this post.

    And thank you, CPAW staff for that link to tineye. I bookmarked that one!

  11. Great post Rachel!

    We used Istock for many years until Getty purchased the site and the prices ballooned. Here is a great site with a large selection of photos, typically in the $1-$5 range. http://www.bigstockphoto.com/

    As the owner of an internet marketing firm I’m always uncomfortable having to explain to new clients that they just can’t copy images or copy for that matter from any source they find on the internet. It is also why we have every client sign a release of liability for us before we begin any project.

    With copyright it makes no difference if the item in question has been registered. The example our attorney gave to me was if you were at a bar and made some notes on a bar napkin, those notes have a copyright. Written in an email, copyright!

    Google, Bing, Facebook…. appear to be violating copyrights daily. I’m an interested observer of how the internet changes in the years to come as issues of copyright and privacy are more fully pursued in our litigious society.

    • Rachel Strella Says: October 7, 2014 at 9:38 am

      I love Bigstockphoto.com – thanks for sharing. It’s nice to hear from you. Thanks for the resources and input!

  12. Another thing you can do is register your site with the US Copyright office. If your site is registered, you are protected by the DCMA and the “troll” needs to notify you first of the infringement and give you the chance to remove it without consequence. If your site isn’t registered, they can harass you, though they have to bring you to court if you don’t agree to send them the settlement money. But if you are on the list you likely won’t get these letters again because they do check to see if you are first.

    The first time this happened to me, though, the site wasn’t registered and it involved third party placement (someone uploads the image/it appears in an ad or other third party content). In that case, I replied that I had removed the image and that the copyright infringement was not a volitional act on my part (which it wasn’t….). Then I cited CoStar Group, Inc. v. LoopNet, Inc., 373 F.3d 544, 555 (4th Cir. 2004) (“Agreeing with the analysis in Netcom, we hold that the automatic copying, storage, and transmission of copyrighted materials, when instigated by others, does not render an ISP strictly liable for copyright infringement under §§ 501 and 106 of the Copyright Act.”) and never heard from them again.

  13. This action by Getty is dismaying, and I’m left wondering what the final outcome was in your situation, Rachel (“I received a final response that they would pursue the matter with my client directly”—what happened next?) What strikes me is how quickly Getty lowered the original extortion amount they quoted. Obviously they’re just fishing around hoping to stun and intimidate business owners with all the legalese. But I bet they don’t want to take each and every target to small claims court (which is where these cases would end up). So it seems worth ignoring such a letter while obviously changing one’s image sourcing to avoid the nuisance of getting a letter like this.

    I just saw Chris Clark’s informative comment, and again leads me to believe that neglecting to pay (and citing a legal precedent if you actually want to respond to the troll) seems like a good way to make them just go away.

    • Rachel Strella Says: October 14, 2014 at 3:26 pm

      My client has not heard anything more on the matter. And, neither have I. I will take no news as good news~

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