A couple weeks ago I was talking with a well known picture researcher. He said, “I wish all these copyright cases were over!” He pointed out that every time someone files a copyright suit he gets a new list of people whose images he can’t use when searching for images for a new project.
If the suit is filed by an agency then he may be told that he can’t use any images from that agency’s collection regardless of the individuals involved in the original suit. Keeping track of where he can and cannot search for certain subjects makes his life difficult. It is also frustrating when he knows that some of the best images on a particular subject are in a collection he can’t use. On the other hand, the huge oversupply of images on virtually every subject usually makes it possible to find something that will fulfill his customer’s needs. The customer never knows what they missed.
I’m not saying that the image creator doesn’t have every right to expect to be reasonably compensated for the use of his/her work and to pursue legal redress when an unauthorized use is discovered. But in the long term does this really benefit the creator?
Educational Publishing
One of the biggest unauthorized use problem areas is educational publishing, and this used to be a large portion of the stock photo market. Educational publishers need generic images that illustrate specific concepts. Timeliness is usually not a factor. But the more they can reduce the cost of content the greater their profit. In the print environment publishers used to purchase new images for each new edition of a book, or at least pay for a second use every time they published a new edition or exceeded a particular print run.
In the late 1990s and early 2000s in order to grow profits many publishers stopped telling creators and their representatives about these additional uses. Creators have always been forced to rely on the publishers for this information because circulation figures were never made public and it is very difficult to keep track of when new editions are released. It took most creators several years to catch onto what was happening. Then the lawsuits started.
At first the publishers stonewalled the creators as far as supplying information. At the same time they started demanding rights for larger and larger print runs for little or no addition fee over and above what they used to pay for 40,000 copy print run. They also demanded unlimited digital rights.
When they started creating digital products back in the 90s they argued that they were required by their customers to supply digital versions of their books along with the print editions. They weren’t getting paid any extra for this digital material, so they asked creators to give them the digital rights for little or nothing.
Now, they are downsizing their print operations and moving rapidly to digital. It won’t be long before they stop publishing new editions of print books. (See what McGraw-Hill had to say about the future of print in
this story.) When they are all digital they will get paid every time a new student gets access to their web site instead of the old system where they sold a print copy and then watched as used book sellers made a lot of additional profit off of their book. The publishers stand to make a lot more money.
The publishers also have unlimited rights, forever, to use most of the images in new digital products that they have acquired in the past few years so long as the general category of use remains the same. As a result creators are likely to see fewer sales for less money per image licensed in the years to come.
Some of the old timers may be able to get some compensation for images that were licensed before the “unlimited digital” clauses went into effect. But they are unlikely to be able to license new images for educational use. The new producers are stuck with the new agreements, if they want to license images for educational use at all.
Other Commercial Uses Online
For several years Getty has also been using Picscout to search commercial web sites for unlicensed use of its images. When they find such uses (about 50,000 a year) they send the website owner, a demand letter for compensation. Usually they ask for what they have normally charged if the user had come to them in the first place and licensed the image before using it. It is a huge administrative burden, not only to find these images, but also to determine if each image found was legally licensed by one of Getty’s many distributors. A small administrative fee is often added to the basis use fee.
Nevertheless, many people who receive these letters refuse to pay feeling that they have a right to freely use any image they can find on the Internet. If a fee cannot be negotiated then Getty may file a copyright infringement suit, but this is often more costly and time consuming than the revenue recovered. In the U.S. court system a copyright suit can often drag on for years. Getty has also received a lot of bad publicity on the Internet for this effort.
Even if a settlement is negotiated, there is a good chance that the next time the user needs images he/she will go somewhere other than Getty to find them.
Last month, Getty general counsel John Lapham told
Gigaom that, “Our enforcement polices are being ramped down. We’ve changed the program quite a bit to remove penalty and fees.” Getty now does more to distinguish between blatant pirates and “customer who make a mistake.”
Getty is caught between a rock and a hard place. Their tactics are necessary to signal they will do all they can to stand up for the copyrights of the photographers and artists they represent. On the other hand a customer who learns the hard way that they have inadvertently infringed a copyright, many turn to lower priced royalty free images from another company (like Shutterstock) for all their image needs.
In the long run, a few photographers may get some big paydays after expending a lot of legal effort and waiting years for the courts to decide in their favor. The vast majority of photographers may see a decline in the number of images they license as potential customers go elsewhere to get the images they need.
Among those elsewhere's is
Flickr where there are over 300,000,000 images that can be used for non-commercial purposes as long as the user gives the creator attribution. Many of these images are not of the quality found on Getty or the microstock sites, but many are perfectly satisfactory for customers trying to find images they can use for little or no money.
Other Ways To Fight The Unauthorize Use Problem
A lot of the unauthorized online image use is by individuals that give very little thought to copyright or its reason for existence. They just grab what they like. Of all the images being grabbed, only a small percentage are posted by professional creators, who expect to be compensated for their work.
Over 350 million images are posted on Facebook every day (Sept. 2013). Most of those are not from commercial organizations trying to sell a product. Shutterstock has done a deal with Facebook that allows any Facebook advertiser to search for images for their ad on Shutterstock and use anything they find for FREE. Facebook then pays Shutterstock a small fee for each use. The amount of the fee hasn’t been announced, but contributors say they get paid $0.38 when one of their images is used in this way so Facebook probably pays about $1.25 per image used.
When it comes to Pinterest
Getty Images is now using its image search tool (Picscount) to track any use of more than 80 million photos and illustrations that can be found on Gettyimages.com. Pinterest has agreed to pay Getty a fee whenever someone posts one of Getty’s images to the site. It is not clear whether this is a one-time fee regardless of how long the image remains on Pinterest, or whether Pinterest pays a monthly fee as long as the image remains on the site. Many photographers are finding that half their reported sales are for “Pinterest/Portal” usage. The gross fee paid to Getty for such usages is $0.03 and the photographer’s royalty share is $0.01.
Neither of these solutions may benefit creators in the long run, but in today’s world where everything is supposed to be FREE the copyright law doesn’t seem to be helping much either.