Photographers Roger Ressmeyer, Richard Minden and 82 other named complainants have filed a copyright infringement suit against Getty Images in the Eastern District of New York. The plaintiffs allege that licensing their rights-managed images as part of Getty’s Premium Access subscription product is a violation of existing contractual agreements.
The plaintiffs have signed Getty’s rights-managed image distribution agreements, which grant the company a limited right to license supplier images on a use-by-use basis. The agreements also obligate Getty “to set each per-use royalty in good faith and on a commercially reasonable basis.” The complaint claims that some images have been licensed through Premium Access for fees as low as $2.08, which the plaintiffs do not consider commercial reasonable. Other photographers have told Selling Stock they have received Premium Access payments of as little as $0.98. The lawsuit alleges that by charging such low fees, Getty “dramatically undercut the market, thereby increasing its market share and enriching itself, at the expense of the Plaintiffs.”
In addition, contracts between Getty and photographers supplying rights-managed content provide “a curb on using the images … for certain (unspecified) purposes or for unchecked uses.” Photographers involved in the lawsuit claim that Premium Access disregards this provision by not tracking how, where or in what medium the images are used or the duration of their use. Thus, the plaintiffs contend that copyrighted images are being used outside the scope of the agreements and without paying additional royalties.
On its Web site, Getty defines rights-managed images as those licensed on a use-by-use basis. The rights-managed model is universally recognized as a licensing structure in which rights to a creative work are carefully controlled by a licensor, by using exact and limited wording of each successive grant of usage rights.
At last week’s annual gathering of the Picture Archive Council of America, participants raised the question of whether pictures that were under contact for rights-managed licensing could be included in subscription products. The universal consensus among attendees was that this would constitute a contract violation.
Getty has chosen to license rights-managed works as if they were royalty-free, with no tracking of how the images are used. Without tracking usages, it is virtually impossible to license the same images for exclusive use in the future, as the potential exclusive buyer cannot obtain information on how a given image was previously used.
Ressmeyer is the chief executive officer of Science Faction Images, a subsidiary of Visions of Tomorrow, Inc.; Minden is the chief executive officer of Minden Pictures. The lawsuit, which asks for a judgment for damages and losses in excess of $100 million, is a class action for all photographers whose rights-managed images have been licensed through Getty’s Premium Access.