Copyright Trolls? Or an Innovative Business Model by Getty Images?
By Sharon Adams
Certain large companies, including Getty Images, routinely send out demand letters claiming copyright infringement. However, the actual validity of alleged infringement is rarely, if ever, tested in court. Getty Images seems to have perfected the “price point” for extracting money based on weak claims of copyright infringement.
Getty Images is a private company, founded by Mark Getty, son of the American-British billionaire philanthropist Sir John Paul Getty, Jr.
Getty Images purports to be providing images as a sort of public service, stating on its website that: “Easy, legal access to historic and contemporary content empowers our customers, contributors and nonprofits.”
However, it appears that “easy legal access” may come at a cost to innocent nonprofits that receive a demand letter from Getty Images. Recently, a nonprofit public benefit corporation received such a demand letter from Getty Images, containing the following claim of copyright infringement.
The Getty Images demand letter asserted that the image shown to the left was infringed by the image shown below.
The image below is a screen shot of the nonprofit corporations website, containing an article discussing the housing bubble.
Simply by sending out a demand letter, Getty Images was able to extract money from this nonprofit, based on a weak claim of copyright infringement.
A weak claim means that it is unlikely that Getty Images would actually prevail if this matter went to court. But it didn’t make it to court. Because the cost of fighting this copyright infringement claim was so much higher than paying off Getty Images. This is often referred to as a “business decision” — it’s far cheaper in terms of time, money and emotional health to pay the demand than to fight it.
Moreover, even if the nonprofit had prevailed at trial, there would be little to no financial benefit to the nonprofit at all. A favorable ruling would find non-infringement by the nonprofit, after the nonprofit spent tens of thousands of dollars on attorneys’ fees to reach this conclusion. Note that attorney’s fees are not awarded in copyright cases as a matter of course. Recipients of demand letters such as those sent by Getty Images are faced with a choice — spend lots of money to fight a weak claim with little or no financial benefit if they prevail OR pay off the demand. There really is only one reasonable “business decision” in this matter, and the nonprofit made that decision and paid off Getty Images.
The nonprofit has some strong arguments supporting a finding of non-infringement.
Let’s start with the obvious fact that the images are not identical. Nowhere in the Getty demand letter is there any explanation for why it claims infringement by an image that is different than its copyrighted image. Presumably, Getty Images was relying on the concept of “substantial similarity”. The Ninth Circuit uses a two-part test to determine substantial similarity.
The extrinsic test is an objective comparison of specific expressive elements; it focuses on the “articulable similarities” between the two works. [Citations and quotation marks omitted.] The intrinsic test is a subjective comparison that focuses on whether the ordinary, reasonable audience would find the works substantially similar in the total concept and feel of the works.” [Citations and quotation marks omitted.]
L.A. Printex Industries, Inc. v Aeropostale, Inc., 9th Circuit, Case No. 10-56187, April 9, 2012 (emphasis added).
Under the “intrinsic test” your opinion, as a reasonable audience, is decisive. Do you think the two images are substantially similar so as to validly support a claim of copyright infringement?
Note that substantial similarity is NOT an element in copyright infringement, it is a doctrine “that helps courts adjudicate whether copying of the constituent elements of the work that are original actually occurred when an allegedly infringing work appropriates elements of an original without reproducing it in toto.” Range Road Music, Inc. v. East Coast Foods, Inc., 668 F.3d 1148, 1154, 2012 U.S. App. LEXIS 3173, 10, 101 U.S.P.Q.2D (BNA) 1768, Copy. L. Rep. (CCH) P30,187, 87 Fed. R. Evid. Serv. (Callaghan) 974 (9th Cir. Cal. 2012).
Thus, if your decision, as the reasonable audience, is that the two works are “substantially similar” then the next step is to address whether copyright infringement occurred and if there are any “fair use” defenses that defeat the infringement claim.
Assuming that there is sufficient similarity in the images to find copying, the next issue is whether the nonprofit has any defenses. If the use by the nonprofit was for “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research” then there is no copyright infringement.
Assuming that none of these apply, the nonprofit could also asset the “fair use” defense. The fair use defense requires an analysis of: “(1) the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use on the potential market for or value of the copyrighted work.” 15 USC § 107.
In a recent case, Dhillon v. Doe, (N.D. Cal., Feb. 25, 2014), involving noncommercial use of an exact duplicate of a copyrighted image, the court held that the “first factor, the purpose and character of the use, weighs heavily in favor” of the alleged infringer. Thus, in the case of the nonprofit, the fact that its use was for educational and informational purposes, and not for profit weighs heavily in favor of the nonprofit.
However, Getty Images seems to have a business model that relies on extracting money by asserting weak claims copyright infringement and demanding money to go away.
A recent job posting for a Compliance Specialist at Getty Images seeks non-lawyers for “work [that] is fast-paced as we race to then end of each month in an effort to meet our self-imposed targets.” Compliance Specialists are “responsible for contributing to achievement of team revenue goals”. From this job posting, it appears that Getty Images rewards its Compliance Specialists based on revenue generated. Thus, Compliance Specialists have an incentive to get some cash, rather than seek justice for copyright infringement.
Getty Images recently announced a new way to distribute its images — allowing “free” use of many of its images, in exchange for an open-embed program that permits Getty Images to put a footer at the bottom of the picture with a credit and link to the licensing page. Once the images are embedded, Getty has much more control over the images. The new embeds are built on the same iframe code that lets you embed a tweet or a YouTube video, which means the company can use embeds to plant ads or collect user information. “We’ve seen what YouTube’s done with monetizing their embed capabilities,” says Craig Peters, a business development exec at Getty Images.
Perhaps this new approach by Getty Images is a better model for dealing with file sharing that is so much a party of the Internet. But, this new approach also raises privacy concerns. For example, Getty Images embeds may appear on a many different sites that a user visits, allowing Getty Images to correlate information about that user’s browsing history across a variety of websites. This information, in turn, could be subject to government requests, eavesdropping or hacking into the data, or sales to data brokers.
There are ways by which Getty Images could protect end user privacy, as suggested by Electronic Frontier Foundation:
“[Getty Images] should offer images over an encrypted HTTPS connection by default. It should explain clearly and publicly what its practices are for minimizing the amount of data it collects and stores on users. And even if the company adheres to its current minimal data collection standards, it should commit to setting a high bar on following the Do Not Track spec: if users are sending a signal that they do not wish to be tracked, Getty Images should honor it fully.
Time will tell whether Getty Images is really moving away from its previous litigious stance regarding distribution of its images. Consumers are advised to proceed with caution if using Getty Images. Consumers may find better options for obtaining images for their websites through others with a proven record of providing open source images. Some examples include images licensed for free distribution under a Creative Commons license, found on the Flickr website, or images that are in the public domain, as shown on Wikipedia.