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March 17, 2014

Getty Images Moves to Embedded Photos

Why You May Want to Exercise Caution Before Using This Service

match-268528_640Getty Images has recently announced that it is moving 35 million of their photos to a new service that will essentially allow people to embed Getty’s photos on websites, social media, etc. without having to pay a licensing fee. This is a departure from what Getty used to do, which was charge users a licensing fee for use of the photographs in their library.

The Getty Embed service might seem like a fabulous service, particular if you are a blogger or business owner with a limited budget for marketing and stock photography, but it is a service that needs to be highly reviewed before use.

Getty Embedded Images May, On the Surface, Look Good But It Isn’t Without Holes

The fine print, surrounding use of Getty’s new Embedded Photos service, is left a bit unclear:

Where enabled, you may embed Getty Images Content on a website, blog or social media platform using the embedded viewer (the “Embedded Viewer”). Not all Getty Images Content will be available for embedded use, and availability may change without notice. Getty Images reserves the right in its sole discretion to remove Getty Images Content from the Embedded Viewer. Upon request, you agree to take prompt action to stop using the Embedded Viewer and/or Getty Images Content. You may only use embedded Getty Images Content for editorial purposes (meaning relating to events that are newsworthy or of public interest). Embedded Getty Images Content may not be used: (a) for any commercial purpose (for example, in advertising, promotions or merchandising) or to suggest endorsement or sponsorship; (b) in violation of any stated restriction; (c) in a defamatory, pornographic or otherwise unlawful manner; or (d) outside of the context of the Embedded Viewer.

According to the fine print, the availability of any images can change without notice and they reserve the right to remove the photos altogether at any time now or in the future. This means that if you are using the service on your blog, your image may disappear someday leaving you with posts without a picture.

The second thing is the usage language. It states that you can use the embedded photos for editorial purposes “relating to events that are newsworthy or of public interest” but how is one to determine whether something is newsworthy or of public interest? The language is still incredibly too loose thus opening users up to possible copyright infringement.

Getty states that you can not use the photos for “any commercial purpose”, which some may think only has to do with advertisements, etc. but “any commercial purpose” can mean a wide range of things. Getty could essentially hold you accountable for copyright infringement if your website or blog has ads in general (as it is then, arguably, a commercially driven site). Or, if you sell a product or service. This wide open sentence in its terms of use is exactly what will open users up for possible copyright infringement.

In an article featured on the British Journal of Photography’s website however, a representative from Getty was quoted saying:

Blogs that draw revenues from Google Ads will still be able to use the Getty Images embed player at no cost.

“We would not consider this commercial use,” says Peters. “The fact today that a website is generating revenue would not limit the use of the embed. What would limit that use is if they used our imagery to promote a service, a product or their business. They would need to get a licence.”

A spokeswoman for Getty Images says that editorial websites, from The New York Times site to BuzzFeed, will also be able to use the embed feature as long as images are used in an editorial context.

In reading this, it feels like online newspapers, magazines and bloggers may be the best market for this service whereas a business and / or business blog may run into potential copyright infringement issues if they use the embedded service.

The other thing that came up in the BJP article is that Getty could, at any time now or in the future, monetize the embedded viewer. This means that the images you place on your blog or website now could become ads. Or, they could feature preroll ads much the way YouTube videos do. Either way, using the photos now may seem like a great idea but down the road it may result in hours of website and blog clean-up to remove the photos that are now advertisements.

Getty’s Past: Big Business in Copyright Settlement Demands

In a BusinessWeek.com article, Craig Peters, a senior vice president of Getty, was quoted saying that “tens of millions” of Getty photos were shared without legal licensing.

To help combat the illegal use of their digital photograph library, Getty had acquired the service PicScout, which crawled the web looking for duplicate uses of photographs in the Getty collection and alerted Getty to potential copyright infringement. When one of these potential cases were found, Getty would issue letters to the infringer asking them to pay a settlement fee.

I am very familiar with this process because I am one of the people who was issued one of these letters.

My Personal Experience with Getty Images

When I received the letter from Getty, stating that I was violating copyright law, I was surprised because I have invested thousands of dollars over the past ten years on stock photos (at sites like iStockPhoto, Fotolia, etc.) to use in my projects and in my client’s projects. I am very familiar with copyright law and would never use a photograph that was not either public domain or purchased by our firm.

Instead of reacting to the letter and paying their outrageous settlement demand ($2,500 USD for the use of two images that were used on a non-commercial space and in a space where I did not personally gain whatsoever from their use), I decided instead to do some research.

Getty Images is known for acquiring stock photo companies that may be disrupting their ability to sell high priced images. Between 1996 and today, Getty has acquired nearly all major players in the stock photo market. In 2009, Getty purchased Jupiterimages, which included the websites stock.xchng and StockXpert. Not mentioned in this Wikipedia article was SXC.hu, a free stock photo website that was also owned by Jupiterimages and a website that we used regularly to obtain images to use on our blog posts.

The two photos that Getty had included in their screenshot of my business blog were in fact photos that we had pulled from the SXC.hu library – a previously 100% free-to-use, public domain library. A website that has the following in their terms of service (this is directed at those uploading photos to the library but it depicts the relaxed feel surrounding the usage of photos in the library):

You acknowledge that under no circumstances can you demand money from SXC or those using the Images for the use of said Images. You you may ask payment for a higher resolution version of an Image but only if it’s not stored on the Website. 

My best guess is that after Getty acquired SXC.hu, they transferred all of the free photos to their “copyright protected” library and began sending out settlement demands based on the usage of those photographs. Since I didn’t have evidence of that specific thing happening, and could no longer dig up the photo on SXC.hu, since the website is no longer operational, I had to continue my research.

A simple Google search of the keywords “Getty extortion letter” will produce about 81,500 results. There are entire websites focused solely on these Getty copyright settlement letters. A lot of people, thousands upon thousands, receive these letters and many people, whether truly guilty or not, pay the settlement. I don’t blame them – the letters are scary and contain a lot of legal jargon. However, when I received my letter, I wanted more information.

I wrote to Getty and explained where I had obtained the photo and I asked them to provide to me a copy of the copyright license that they would have acquired from the original photographer. I figured that if it had been uploaded to SXC.hu, they wouldn’t have a license as those photos were uploaded license-free. They couldn’t provide the license and they told me that it was “irrelevant to this matter.” Obtaining a copy of the license, that I was supposedly infringing upon, felt entirely relevant so I refused to pay the settlement fee until they could do so.

In Summary: I Won’t Be Using the New Service and You Should Carefully Consider Using It, Too

Given that I have first-hand experience with the copyright side of Getty’s business, I don’t feel confident enough to trust that they wouldn’t bend their copyright terms. Especially not when I read quotes like this (as seen in this Businessweek article):

Embedded images will not be allowed in contexts that promote products or businesses. “That’s a pretty clear delineation,” Peters says. “We’ll enforce the terms of this license if people start using these images to do that.”

From that quote, it sounds like Getty will continue to strongly enforce the terms of their license and, since the language is still unclear around proper use, one would never know if they have crossed the line or not… until they received a Getty Images settlement letter and was given no other option except to pay.

If part of the Getty Images strategy is to get their name and brand on as many websites as possible, as it relates to stock photography, they will need to work on building trust and creating crystal clear terms in their policy documents. Until then, they may find that some people will be hesitant to use the service.

  • Daiva Pakalne

    Thank you for sharing this. One of my clients too had a letter from Getty…

    • http://www.bsetc.com Erin Blaskie

      They are not the best letters to get, that’s for sure!

  • Deborah Boland

    Great article. Thank you for letting me know. I was on the fence about trying it out, but I think I will pass. Since you have had a lot of experience purchasing photos where is the best place to purchase up to date fashion runway photos and celebrities photos without spending too much? In the past I have used shutterstock, but that was for generic shots.I find all the pricing and packages offered by different companies very confusing and I’d like to try and make this as easy as possible. Thanks.

    • http://www.bsetc.com Erin Blaskie

      I am not sure to be honest — we haven’t had any clients purchasing photos from those sites but I’ll check in with my network and let you know!