Copyright Law Intellectual Property

Beware of Getty Bearing Gifs – No typo, Its a Pun

Disclaimer: For the last seven years or so I have been representing businesses large and small who have received demand letters from Getty Images over the unlicensed use of their stock photography. I have also represented many business who have recently been sued over a smattering of lawsuits Getty has filed around the country this year. In other words, try as I might to be fully objective, I may have valid reasons to look at this subject matter with less than rose-colored glasses.

Explainer:For the unknowing, GIF is an acronym for “graphics interchange format” which describes the process of combining a series of digital images into a small piece of animation. So the article title is a play on words over the age-old slogan “Beware of Greeks Bearing Gifts” due to my analogizing Getty’s offer of free images (the subject of this article) with the famous episode of the Trojan Horse, which spawned the previously mentioned age-old slogan in the first place.

History Lesson: After a fruitless 10-year siege outside the City of Troy, during the Trojan War, the Greeks -Troy’s mortal enemies- constructed a huge wooden horse, and hid a select force of men inside. The Greeks pretended to sail away, and the Trojans pulled the horse (The Symbol of Troy) into their city as a victory trophy. That night the Greek force crept out of the horse and opened the gates for the rest of the Greek army, which had sailed back under cover of night. The Greeks entered and destroyed the city of Troy, ending the war. Just about 10 years ago, Getty Images began the campaign I describe above – sending hundreds if not thousands of letters weekly to folks who are found to have unlicensed Getty Images on their websites. While the program has made Getty Images lots of money, it has been essentially fruitless in limiting the unlicensed use of Getty images by unknowing, unsuspecting, uncaring website developers. Our issue with Getty (as described repeatedly on the website is not that they should allow businesses to infringe on their intellectual property, but rather the amounts they seek are exorbitant and their methods are unnecessarily heavy-handed.

Just last week, Getty Images announced that it will release 35 million images in its library of about 150 million photos, for use by bloggers and social media sites. Getty acknowledged that many such sites were already using their images without accreditation or payment of licensing fees. “Our content was everywhere already,” said Craig Peters, a business development executive at the Seattle-based company to the BBC. “If you want to get a Getty image today, you can find it without a watermark very simply…The way you do that is you go to one of our customer sites and you right-click. Or you go to Google Image search or Bing Image Search and you get it there.”

What Mr. Peters failed to mention is that if you did do that “right-click Google image” thing, it was only a matter of time until you got a cease-and-desist letter asking for $1,250 or thereabouts for your use of their thumbnail stock image and that if you ignored that you then got further inundated with letters and/or emails from collection agencies and lawyers. But I digress.

Social media and web blogs exploded with glee over the news that all these images are now available for free. Example: “This new Getty Images embed capability will open users up to a huge new creative repository in a simple, legal way,” says Raanan Bar-Cohen, senior vice president of commercial services at Automattic, the company behind, on the Getty blog. “We look forward to seeing all the amazing ways that our users can take advantage of this new access.”

trojan-horse-wickipedia-736005Yes, but how will Getty take advantage of this new access? Well, in order to get the free access, you have to embed a link that Getty requires which will pull folks back to the Getty catalog. These embed links also provide a window into your website so that Getty can (a) data-mine your site and its activity and sell that info to spammers and ad salesmen and (b) place ads through the link into your site. In its announcement, Getty did not mention planes for future monetization but in subsequent interviews it also did not deny that this was likely going to be used as revenue source. I expect when they decide to data-mine or sell ads (or likely both) they will make the announcement under cover of night. Is there any real chance that Getty would announce this new program without having thought out exactly what they are going to do with it down the road? I doubt it.

More likely is that Getty has already investigated and analyzed how to monetize this new idea the way they monetized copyright infringement enforcement. Two years or so ago, Getty paid $20 Million for PicScout, the software company that developed the program that Getty used to find its unlicensed images. Prior to the sale, Getty used to share its infringement revenue with PicScout; the sale allowed it to eliminate the middle man. Getty competitors continue to rely on PicScout for their infringement trolling programs so now when you misuse a digiital image Getty makes money even if you misused one of their competitors. This company is no babe in the woods and it did not get to be the industry leader by rash business decisions.

So while they announced this great new release of all these photos, worry about why they didn’t announce their other plans for he embed links. And if you decide to use on of the “free”images make sure you carefully adhere to and be aware of the limitations they place on the use: (1) The images can’t be re-sized; (2) you must embed the whole link exactly as written; (3) the image will include the Getty logo and photographer credit; (4) clicking on the image will take readers away from your blog and onto the original image in the Getty catalog; and most importantly (5) your use must be a non-commercial use. News outlets and commercial enterprises will still have to pay to use Getty’s images. I don’t know how Getty will define “commercial use” but I bet it will be a very broad definition.

What will happen if your use is not consistent with these limitations Mr. Peters says if a blog appears to be promoting a product or business with the images, it will take action:
“That’s a pretty clear delineation,” Peters said to Businessweek. “We’ll enforce the terms of this license if people start using these images to do that.”

How many people are going to read the fine print or beyond the headlines like the one The Christian Science Monitor posted: “Getty gives away 35 million images for free”? I could be wrong – Getty could be just waving the white flag and doing this all out of the goodness of their hearts. But as Laocoön famously says in Virgil’s epic Aeneid: “Equo ne credite, Teucri. Quidquid id est, timeo Danaos et dona ferentes.” (“Do not trust the horse, Trojans! Whatever it is, I fear the Greeks, even bringing gifts.”)

One reply on “Beware of Getty Bearing Gifs – No typo, Its a Pun”

I would not trust Getty one bit. I will gladly pay for an image from a company like Pond5 before I accept a “free” image from Getty. In my opinion the company has a long history of unethical business practices and should not be trusted.

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