Some very surprising numbers about copyright infringement are being bandied about. Vivozoom has claimed in a press release, with virtually no supporting information, that copyright infringement of photos "adds up to as much as $10 billion annually." Yes, copyright infringement is bad -- but that bad?
Let's look at a few statistics.
I've estimated that in past years, gross worldwide sales of stock images has been in the range of $1.8 billion. In 2009, it's likely to be around $1.45 billion, due to the rise in the use of microstock and the impact of the economy. We also need to recognize that when microstock or other royalty-free images are used online that's not copyright infringement.
Customers were just able to purchase the images they need for very little money. Thus, we are only talking about rights-managed images, two-thirds of which are editorial. I estimate the combined sales of creative and editorial rights-managed images in 2009 will only be about $750 million.
If someone uses an image with a Creative Commons license, that's not infringement. There is a possibility that images that were licensed as microstock or subscription are being used by someone other than the licensor, but why do that when images can be legally purchased inexpensively? Nevertheless, I see no way to estimate how frequently this might happen.
We know that PicScout and other companies search the Internet for commercial use of rights-managed images. PicScouts maintains a database of "fingerprints" of the rights-managed images in the Getty, Corbis and other agency collections and then searches the Internet for matches.
When a match is found it is reported, along with the contact information for the Web site owner to the photo agency. The agency then checks its database to determine if the site owner properly licensed rights to use the image. Getty says that there are approximately 3500 cases a month (42,000 a year) where they are unable to identify a valid license in their system.
Getty then sends a demand letter, but it also states in that letter that "if this is an error on our part, we ask you to send us a copy of the Getty Images' sales order or invoice number or other licensing information. If the image was licensed under an alternative company name (dba) or in the name of a third party, such as an advertising agency, please provide us with that information."
Getty would not provide Selling-Stock with figures on the number of cases in which it was later determined that the image had been legitimately licensed by a graphic design firm or another site provider. Since a significant percentage of commercial sites are designed by someone other than the company owning the site, we suspect the actual number of infringements is only a small percentage of the 3,500 per month. (Corbis says it uncovers about 70,000 violations annually.)
Let's assume that all 112,000 of those uses were infringements. If each user had licensed rights properly, it would have cost them $49 per image. That comes to $5,488,000. Not an insignificant sum, but not billions! If these were the combined losses for Getty and Corbis, the losses for all stock agencies in the world would probably have been no more than double that number.
According to the Los Angeles Times, a Long Beach, CA travel agency recently received a letter from Getty saying "It has come to our attention that you are using an image represented by Getty Images for online promotional purposes…" It demanded $1,000 in damages or $900 if the company paid within two weeks. The travel agent was surprised to receive the letter because a Web design firm had created his site, and he believed all images had been properly licensed. He also felt that he should not be expected to pay hundreds for an image that could have been licensed for $49.
New York attorney Oscar Michelen focuses on dealing with damage claims from Getty and Corbis and calls four-figure fines "a legalized form of extortion." To see a copy of the Getty letter and Michelen's recommended strategies to image users go to his Web site.
Clearly, Getty, Corbis and all other image suppliers and producers have a desire and a fiduciary obligation to stem the tide of copyright infringement. But there are also huge costs in trying to track down infringers and collect. Even if Getty were to get $1,000 for each infringement a significant percent of the time, it probably wouldn't cover their costs.
Getty has also developed a Copyright 101 resource for customers. It does a good job of explaining copyright to the buyers, but the trick is getting the buyers to read it before they infringe.
Pursuing infringers may also be counter-productive to growing the rights-managed side of the business. Recently, a 45-year-old interactive designer was giving a presentation at the Art Director's Club of New York and was asked about her use of stock. She said, "….stock? Oh yes, like istockphoto? We use them so much, Getty just got to be too expensive for a shot of a businessman sitting at a desk. I can obtain what I want for my client for $5 now."
We are all properly outraged by copyright infringement, but it does not help our cause to make outrageous, unsupportable claims about the extent to which it is occurring. We may also need to look for alternatives to lawsuits as a way of being compensated for image use; consider PicApp, Fotoglif and GumGum.