Watch Out for Big Brother: Getty Images Strong Arms Unsuspecting Small Businesses
by Rachel Strella
07 Sep 2014
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 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.
My 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.
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
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 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.
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.
*The image has since re-appeared on the results, this time by different sources.
***In June 2015, we reached a resolution with Getty Images. Ultimately, we paid their collections agency $300 as a settlement in the case.