Last week we wrote about the new Getty Images initiative
Post-Usage-Billing Service (PUBS). On Thursday Craig Peters, Senior Vice President of Business Development for Getty spoke at the Luminance event in New York and shared some additional insights. He spoke of the dilemma the photo industry faces in protecting copyright and how Getty’s new initiative can solve at least part of the problem.
With the explosion of the use of photos on social media and sharing sites like Pinterest, YouTube, Facebook, Instagram, Tumblr and many more it has been virtually impossible to license rights, or even get credit when someone grabs a photo off the Internet and uses it in a new way. The Internet has made if possible for anyone to publish, tweet, like or share anything they find.
Peters started his presentation with two assumptions:
1 - Content owners largely want to be paid as well as receive credit.
2 – The vast majority of users want to honor the copyright of others.
Before examining the solution we need to first examine these assumptions. With the explosion of user-generated content we have moved to a place where the vast majority of “content creators/owners” have little, or no, interest whatsoever of being paid for the use of their images. (Check out Noam Galai’s
Stolen Scream as just one example.)
Think of all the people who post pictures of their product or service on the web. They are happy to have those images distributed as widely as possible because that provides additional free promotion for what they are doing or what they have to offer. Then there are those who create for fun or to promote some particular issue. In these cases compensation is secondary, if an issue at all. Such creators may appreciate a credit, but having the image used is more important to them than credit. If they must spend any energy whatsoever to get credit they won’t bother.
With so many “free to use” images available on the web, it is almost impossible for those who want to pin or share an image to know if they can legally use a given image, or not. Those not engaged in commerce will continue to use images with abandon. There is no way to stop them.
As we move on to Peters’ second assumption, I agree that the vast majority of “commercial user” (those who want to post the image on a web site that will earn some type of revenue or where some value is created) do “want to honor the copyright of others” if for no reason other than they might get sued if they don’t. But it is important to recognize that these cases are only a small percentage of all the images available for appropriation. Our traditional licensing paradigm that focuses on dealing with those who use images for commercial purposes clearly doesn’t apply.
Getting Credit and Compensation
ImageIRC Post-Usage-Billing Service (PUBS) focuses on getting revenue from the image rich “platforms” rather than the sharers. In principle this makes great sense because the platform is the one earning revenue (or hoping to do so) from advertising, not the person actually doing the posting.
With PUBS determining whether the image needs to be licensed and credited is fast and frictionless. When a provider agrees to participate any image uploaded to their site is instantaneously sent to PUBS via an API, fingerprinted and the fingerprint compared with the PUBS database. If the image is in the database, then it must be licensed.
If the image isn’t included in the database there is a natural assumption that it can be used with impunity because there are millions of images on the Internet that require no licensing.
Thus, anyone who is interested in receiving any type of credit or compensation when there image is shared on the web had better get their images fingerprinted by PUBS. In all likelihood it won’t be long before the legal system will assume that any image that can’t be found in the PUBS database will be free to use.
Establishing A Price
It seems clear that individuals will be unable to negotiate any kind of deals with sharing sites like Pinterest, YouTube, Facebook and Instagram. Getty will probably develop subscription arrangement where a monthly fee is negotiated with a particular platform for unlimited use of any image in the database. One would expect the price a platform pays to vary based on the volume of revenue the platform generates. It is assumed that if the image is in the database it is available for licensing.
At this point it is unclear whether creators will be able to place their images in the database and say, “if this image is posted on any site monitored by PUBS then it must be taken down.” While this could be beneficial to creators who want to control rights, it probably would discourage platforms from participating in the service. There is nothing that requires platforms to use the PUBS API. It seems that the best creators can hope for is a system that says a particular image can or cannot be used. It seems highly unlikely that they will ever be able to specify different prices for different usage.
Negotiating with the platforms will require an organization with the size and clout of Getty. While the platforms may be willing to pay a monthly fee to avoid DMCA take down notices, it seems unlikely that they will be willing to pay very much.
Creators will receive a portion of whatever Getty is able to collect. It seems unlikely that creators will ever be given any information concerning how much the platforms pay for usage; the number of total downloads in any given month, or how the creator’s share is calculated. Getty has always sought to pay creators no more than 20% of the monies collected by the company. They argue that they need 80% of revenue collected to cover their overhead and operating costs. Thus, if a platform agrees to pay $50,000 a month and 10,000 of the images posted on the platform are in the PUBS database Getty would keep roughly $40,000 and creators would receive about $1.00 per image posted. If the creators images are supplied by a third-party distributor the creator would receive even less. No matter how many images are used Getty gets its 80% share. The creators share goes up or down depending on the number of images used.
PUBS also hopes to establish prices based on the “value the images create” for a platform, not just revenue generated. For example, a start up may not be generating any revenue, but the images are helping them build traffic and get to a point where they might sell advertising. Based on the traffic generated they are able to raise venture capital to pay for additional employees and grow their business. It is believed that in fairness a portion of that venture capital should be shared with the image creators who were instrumental in growing the business. Only time will tell if this type of thing can ever happen.