For over seven years, Getty Images’ high-priced law firm has been intimidating small businesses, website owners, bloggers, and more with heavy-handed copyright bullying tactics.
Using its automated software (which ramped up in 2011 after Getty Images acquired PicScout for $20 million), images that appear to have been used without the publisher paying for the appropriate licenses are flagged, and the publisher is sent what has come to be known as the “Getty Images Demand Letter” or the “Getty Extortion Letter.”
You can click on the image or follow the link to see a real, redacted example of the letter.
The Difference Between Copyright Enforcement and Copyright Bullying
Whatever you want to call it, what’s happening is a perfect example of a large company exploiting copyright law in the wrong way.
Now, let me explain before you say, “Wait a minute—you’re an intellectual property attorney! How could you say that Getty Images is exploiting copyright law?”
When an original work is created, the owner has every right to protect that work and enforce those rights to prevent others from profiting from it. However, that doesn’t mean the owner has the right to threaten potential infringers and refuse to discuss the matter or negotiate.
I’ve represented clients who have received the Getty Demand Letter, and in more than one case, the party I represented did not clearly infringe on the copyright. However, my letters to Getty Images were responded to with template responses. Getty Images refused to provide copies of the federal copyright registration of images in question. They refused to prove that the fees they demanded from my client equaled to their losses due to the infringement. In other words, there was no chance for discussion, and that is a form of bullying that small business owners, website owners, and bloggers shouldn’t have to deal with.
Getty Images’ team of high priced attorneys have all of the time and money to ensure that recipients of the Getty Images Demand Letter have no choice but to pay up, and that is wrong. Getty Images is using copyright law to extract fees that it might not be due, but since it targets people who can’t afford to pay to fight them, they know their bullying tactics will continue to line their pockets. That’s not how the law is supposed to work.
Head over to Google and do a quick search for the Getty Demand Letter or the Getty Extortion Letter and you’ll find long lists of results that include discussions, websites, forums, blogs, and more dedicated to discussing this letter. I am a 100% supporter of copyright law but a 100% opponent of copyright bullying, and this type of trolling needs to stop.
What Should You Do if You Get the Getty Demand Letter?
If you receive the Getty Images Demand Letter, there is no need to panic, but you need to take the letter seriously. The letter essentially has two demands: stop using the image and pay Getty Images a fee to avoid getting sued.
Unless you have proof that you licensed the image, you should stop using it immediately and remove it from your website and server. Not only is this is a sign of good faith, but it also provides a firm “stop” date to the alleged infringement.
There are so many royalty-free or Creative Commons images available that you should be able to find a suitable alternative in a snap. Some of these options are discussed in more detail at the end of this article.
Do your homework! Find out how much money the image was actually being licensed for and/or look at other stock photo sites to find similar photos, and begin to assess a “fair market value” for the image. Getty Images has been known to inflate the price of an image after a demand letter has been issued.
Assuming there has been an infringement, Getty Images is probably only entitled to recover their “actual damages,” or the precise amount you would have paid had you licensed the image from them. At this juncture, they are not entitled to recover administrative, processing, or even legal fees from you, so you should not pay them. Don’t let them intimidate you into paying more than they’re due.
Respond professionally and always in writing. If you believe your use was a justified fair use, you should include that in your response. A bona fide fair use would immunize you from all liability.
If they have not provided it, you should request proof that Getty is authorized to manage the rights to the image in question. You should also request an explanation for how they arrived at their current pricing and accompanying demand. Regardless of what they demand, Getty Images isn’t legally entitled to collect more than the “fair-market-value” of the image.
What Should You Do Whether or Not You’ve Received the Getty Demand Letter?
Go through your website, blog, and so on and delete any images you used that you don’t have permission or the appropriate license to use. In the future, don’t use any images that you don’t have permission or the appropriate license to use.
If your site, blog, etc. is directly or indirectly related to your business or another commercial endeavor, make sure that you only use images that have the appropriate license for commercial use. That means if you’re using an image with a Creative Commons license, you need to make sure the license is Creative Commons – Attribution Commercial, Creative Commons – Attribution Share Alike Commercial, or Creative Commons – Attribution No Derivatives Commercial. You can learn about Creative Commons Licenses here.
Bottom-line, to be safe, you have three choices:
- Purchase images from a stock photography company like BigStockPhoto.com or Fotolia.com with the appropriate license for your purposes.
- Use an image with an appropriate Creative Commons license, but be careful when using images from sites like Flickr where the person who uploads the image is the one who applies the Creative Commons license to it. The person who uploads an image might not be the owner and might not have the right to apply a license of any kind to it making that Creative Commons license irrelevant. You can learn about the dangers of using an image with a Creative Commons license here.
- Use an image in the Public Domain. Follow the link to see a great document from Cornell University that covers all of the factors related to public domain in one table.
In simplest terms, never copy and paste, and never use an image unless you’re sure that you have permission or an appropriate license to use it.