Monday, November 23, 2015
Getty Images: (Not) Looking for Cash in All The Wrong (Right) Places
Getty Images seems to be talking out of both sides of their mouth when it comes to intellectual property. And the person doing the talking is their CEO, Jonathan Klein, who ventured down to to SXSW recently and was interviewed by TechCrunch TV.
There are two videos of Klein, For Pinterest, Revenue Will Turn Copyright Questions Into Real Problems, as well as Getty Images CEO On Building A Company That Lasts:
Klein, in the first video, has essentially given a free pass to students, educators, and any other use that can be defined as "non-commercial" for all of Getty's images to be used, because, as he said, they won't come after them. Let's take a look at what he said, and offer commentary on it:
On Pinterest and Facebook Klein said:
"Ok let's take a step back because you've raised a very big issue let's talk about intellectual property more generally."Ok, so we're talking about not just Pinterest and Facebook, but ALSO, all other IP on these types of websites.
Klein goes on:
"We are entrusted by our partners, photographers and filmmakers and contributors of whom we have 125,000 to make sure that when their imagery is being used for commercial purposes they are paid."No, actually, they entrust you to ensure they are paid for *any* use.
And then:
"...as the largest imagery business in the world by a significant margin it's in our interests for people to be visually literate. So we don't stop consumers playing with our images, we don't stop kids downloading our images to use in school projects or for educational purposes, we don't stop the proliferation of imagery still or moving."You may be teaching them to be "visually literate", however, you're also teaching them that it's okay to use intellectual property for free. Further, you said you don't stop uses for "educational purposes", so that would seem to also include uses in textbooks for schools?
Then he says:
" Where we do draw the line, is where somebody is generating revenue, commercial revenue, on the back of our image."Ok, so, as long as an organization is losing money, they have a free pass? How do you define "commercial revenue"? What about non-profits? Are they commercial, or not? Just so we're clear - the attraction to, say, Facebook, by the sharing of Getty images, which creates a snow-ball effect and more and more users and people come to it, so much so that the critical mass of people there on the site causes it to be valued in the billions of dollars, neither Getty, nor the content creators, have any share in the valuation of that company.
He then says:
"... we sort of, um, differentiate between the use of the image and to what extent we want to be paid or we're fine with it to be just out there for the public."Ok, so theft is okay, but at some point, you draw the line? How do you think the photographers whose work is on your website will feel about this?
(Continued after the Jump)
Klein goes on - regarding their plans when a Getty image is found on Facebook or Pinterest:
"Well, it's actually, we're comfortable with people using our images to build traffic and at the point in time where they have a business model..."Anyone who has investors has a business model, you just may not be aware of the details. But, again, you're pretty clear here that you've given a free pass to individuals and non-commercial uses.
Klein then says:
"I think the difference between us and a lot of other intellectual property businesses or talent based businesses is that the cost of working with us is relatively modest. "Modest for whom? Investing in the production of images isn't cheap. Serving as the conduit by buying some hard drives and paying commissions to sales reps is cheap. Taking a 70% commission on all sales - not cheap. You seem to be suggesting that the production of images that appear on the Getty website is done by people who don't use talent to produce their images? Really?!? Are you actually saying that? Because, frankly, I know a number of Getty contributors and photographers, and they are among the most talented photographers I know, so, for you to seemingly differentiate your business from those that are talent-based is just off the mark by a mile.
Klein said, on right-clicking:
"We've kept that open [right-clicking] for one simple reason, we want everybody to be extremely visually literate."Again - yes, become visually literate at the expense of legally literate. There was a huge tide of problems with legal illiteracy when it came to the sharing of music that Apple was successful at pushing back. Getty won't be able to stem that tide with this concept.
Klein then says:
"...So everybody's become more visually literate and the success of sites which are very picture heavy like Facebook or Pinterest and the amount of traffic that they're sites have proves that there's a huge attraction in imagery."Yes, and again, where are those people who's IP that appears on these sites getting a piece of the Facebook IPO, or shares in Pinterest? What about the T&C on these sites that say that worldwide exclusive rights to the images uploaded/pinned is given to the company, and how about images appearing in ads out of users accounts on Facebook?
TechCrunch, in this article - here - said Klein's attitude was "surprising", and TechCrunch accurately surmises "The second that Pinterest starts making money of its own, intellectual property owners such as Getty Images will have the right to ask that Pinterest pay up — or start deleting pinboards." They will continue to face DMCA's while the notion that they are exempt from prosecution fades. As TechCrunch accurately notes " It took YouTube years to even come close to making self-sustaining revenue — and that is in the arms of a ridiculously profitable parent company, Google."
According to one commenter on the first video. John Bedford, Pinterest "strip[s] metadata from images that are uploaded to the site... and perhaps most importantly, Pinterest makes a huge rights grab for any content uploaded to their site, including rights to sell or do whatever they want with the images forever - even after you delete them from the site."
Just a few days ago, Getty sent a threatening "final notice" bill for $780 to SportsShooter.com, a well-known website which is a forum and gathering place for photographers, after an image by a well-known photographer (who is a member of that website) was used to announce an upcoming speaking event featuring that photographer. The photographer was essentially using his own image for reasons of self promotion by showing an example of his work. So, now, it seems, Getty is billing for the images it's photographers/contributors post online as portfolio examples and self promotion? I am not sure how this squares with Clause 1.12, in Getty's Getty Images Contributor Agreement v.4.2, as of October 1, 2011, which says:
Use of Accepted Content by you. On a non-exclusive basis, you may use Accepted Content and any Similars for promoting or documenting you and your work, provided that these uses do not compete with or limit the rights granted to Getty Images under the Agreement.In Klein's second video appearance - Getty Images CEO On Building A Company That Lasts, he says a few choice things. Klein was on hand to give a keynote address, and celebrate Getty's 17th year in business. He talks about how they are now licensing music - does his mindset apply to music and video/multimedia as well when it comes to "free-as-long-as-its-non-commercial"?
He says:
"We're in the business of licensing content to folks who'll pay for it."So, the folks who won't pay for it - because, say, they don't have the money, you're not interested in ensuring the integrity of your images? What if someone had an image and uses it for free and jeopardizes an exclusive deal you have with someone else?
And then, he seems to contradict himself when he (rightly) says:
"...we may be old fashioned around here, but we actually think that people have to pay for content. We think that content creators also need to make a living."Indeed. So, which is it? Free to the startups with no revenue and/or non-profits, or, paying so the content creators can make a living?
Then he says:
"And the second thing is that the customer is not always right, but the customer is almost always ahead of you."Correct. So, when the customer says "I shouldn't have to pay for using a photo, how hard is it to take a photo anyway..." they're wrong.
And then he says:
"...So if you can provide something to the customer which is compelling, which is exciting, which is ease to use, hassle free, interesting, and affordable they'll pay for it."So, then, what's the problem - why not offer a personal use license for a few dollars? Oh, wait, you already do. So, now you're not enforcing it?
And then, astonishingly he says:
"I think you have to be open to cannibalization of your business."Now, that's just ridiculous and so far from reality.
And then contradictory to his previous comments:
"But really, the technology and the customer they're kind of right all the time, but that doesn't mean that you give them stuff for free. Because that's what they really want. Yea. I absolutely draw the line at that."So, it's free, or it's not? Not free, but with a wink-and-a-nod you won't come after them?
As Getty Images now owns PicScout, a well known "image fingerprinter", it would be very easy for Getty to identify their images on Pinterest, and bill according to known traffic to each page. So too on Facebook. Further, this mindset will come back to harm Getty when they head to court, as the courts look to past actions when it comes to dealing with a current situation. Another solution could well be that Getty, a founding member of the PLUS Coalition, which has an image registry, very well may be the key. By linking images to creators, copyright owners and rights information, the PLUS Registry will solve many of the issues facing image users and rights holders alike. For example, Pinterest could easily and automatically use the registry API to identify the rights holder for any image, check for permissions, and then separately compensate rights holders who opt in to pinning. PLUS is the only organization of its kind -- a worldwide collaboration between trade associations representing photographers, illustrators, ad agencies, graphic designers, publishers, museums, libraries and universities. Without any formal public announcement, the PLUS Registry already includes thousands of image rights holders in more than 80 countries. PLUS will soon be introducing image registration and image recognition search for rights info, which is powered by Getty's PicScout (that long-term deal was struck before Getty bought them). For now, you can register for a free PLUS membership and free PLUS Registry listing at www.PLUSregistry.org
I know that there is a lot of discourse on the internet about "getty extortion letters" , whereby Getty finds someone who they have no record of having obtained a Getty image legally, stealing an image, and, for a nominal fee of $750, Getty offers to give these infringers essentially a retroactive license.
I am sure that the lawyers behind this, trolling for their own clients to object to Getty, may also be trying to create some form of class action situation down the line. However, companies should be ecstatic that they can get out from under a Federal lawsuit for copyright infringement for that small of an amount. The retainer for a copyright lawyer to defend themselves will be $5k-$10k, if not more - to start. I would find it interesting if there were contributors who took Getty to court for failing to file suit, or, by photographers who had been precluded from filing their own lawsuit by Getty's contract, due to Getty's acceptance of the $750.
For example, pursuant to Clause 1.11, in Getty's Getty Images Contributor Agreement v.4.2, as of October 1, 2011, it says:
"Right to Control Claims. Getty Images shall have the right to determine, using its best commercial judgment, whether and to what extent to proceed against any third party for any unauthorized use of Accepted Content. You authorize Getty Images and Distributors at their expense the exclusive right to make, control, settle and defend any claims related to infringement of copyright in the Accepted Content and any associated intellectual property rights (“Claims”). You agree to provide reasonable cooperation to Getty Images and Distributors and not to unreasonably withhold or delay your cooperation in these Claims. Getty Images will not enter into any settlement that will compromise your ownership of the copyright in Accepted Content or that prohibits your future conduct with respect to Accepted Content without your prior written consent. Getty Images will pay you Royalties on any settlements it receives from Claims. If Getty Images elects not to pursue a Claim, you will have the right to pursue it."Problematically, there is nothing within the contract that obligates Getty to pursue a claim. In fact, if you find and infringement you are contractually obligated to bring it to Getty's attention, and must await their decision, without any timeframe, before they release you from their right to pursue the claim first. In point-of-fact, Getty could exhaust the statute of limitations on the claim and then release you - something they would be well within their rights to do, and might strategically opt to do, if the infringement were against a big client of Getty's. Further, where the contract reads, in section 2.3:
"Getty Images shall not be liable for any punitive, indirect, consequential, special or incidental damages arising out of or in connection with the Agreement, even if it has been advised of the possibility of such. In addition, Getty Images shall not be liable to you under any circumstances arising out of the misuse of Content by any third party."As such, even if you tell Getty you are losing money because they are not pursuing a claim, they will owe you nothing even after you have advised them that someone is using (or misusing) your images.
Then Klein goes on:
"We're not venture capitalists, we're not angel or start-up investors, we're just not good at that...And a lot, of these companies can benefit by partnering with us. That's what we're after, so we're talking to all these folks about partnering. If they're interested in driving, um, monetization to their user base they can use us as a distribution engine."Well, you may not be investing actual dollars, however, the intellectual property you "invest" by not charging for it surely has value that these companies should be paying for. These are called "in-kind" investments. You have essentially given Pinterest/Facebook/et al a free pass by way of their user base.
Sometimes, his words speak for themselves, and leave those who create content that they
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