Ever since publishing my post about Getty’s extortion letters, I’ve been inundated in comments. When I shut them off, there were 214 of them.
Basically, a blog reader shared my post in the Shutterstock forum, which prompted many disgruntled photographers to come here for The Airing of Grievances.
Multiple people emailed me privately to suggest I had a problem with trolls on my blog. Trolls are people who publish intentionally inflammatory comments in an attempt to divert attention away from the original article, or to overwhelm dissent.
Since photographers call themselves “photogs” for short, I figured “trollogs” was the perfect description.
My blog has been attacked by a horde of trollogs!
Okay, maybe that’s an exaggeration, but it’s not too far from the truth.
Some photographers made good points, and did so in a tasteful manner. Others kept asking leading questions — and conveniently ignoring the central facts of my case — to try to make me look bad.
If you read through the comments, you’ll see what I mean, but wading through 200+ of them is tedious and not really that fun. So let me sum up the main arguments on both sides.
Those Who Disagree with Getty’s Extortion Letters Say…
- It is important to protect intellectual property, but pursuing innocent infringers for thousands of dollars per violation is not fair or helpful.
- First-time offenders who have accidentally infringed on the copyright of a single image ought to be warned, but should not be forced to pay onerous penalties.
- If first-time offenders who have accidentally infringed on the copyright of a single image must pay a penalty, then that penalty should be fair and reasonable.
- An image has almost zero cost to reproduce (some hosting and bandwidth), and therefore has a virtually unlimited market. One person’s accidental theft does not deprive any other customer from buying the same image.
The “Trollogs” Say…
- Photographers need to be protected, and ignorance of the law isn’t a valid excuse in cases of copyright infringement.
- It doesn’t matter whether the copyright infringement is accidental or intentional — all violators must be penalized. No mercy!
- Penalties have to be high (in the thousands of dollars), otherwise people will continue to violate copyright and just pay if they get caught.
- Use of an image without proper copyright reduces the image’s value and may prevent paying customers from licensing the image.
For the record, I agree with the first and fourth bullet points, but disagree strongly with the second and third bullet points.
While the trollogs continued to accuse me and others of stealing from them, Oscar Michelen of Extortion Letter Info summed up my thoughts well in a comment:
“Stealing” implies intent but the vast majority of my clients employed and paid third parties to set up their sites and were not web or copyright law savvy. They made a mistake – they were willing to pay a fair amount for that mistake.
Key phrase: “fair amount.”
So What Is a Reasonable Penalty for Copyright Infringement?
It seems to me, the biggest difference in opinion between ordinary people and trollogs is what constitutes a reasonable penalty for innocent infringement.
Some people say that’s for the courts to decide.
I personally say double restitution (2x original cost) is fair and reasonable. I base this upon biblical law, which requires double restitution in cases of ordinary theft.
Trollogs argue that double restitution is not enough. They seem to believe 15x to 30x the original licensing cost is fair.
If the original cost of the image was $75, then I think $150 is a fair and reasonable penalty. Trollogs disagree. They think you should pay somewhere between $1,125 and $2,250 for that same $75 image.
What is reasonable? What is fair? I’ll let you decide for yourself.
While you chew on that, it’s important to understand the two primary types of image licensing arrangements.
Royalty Free vs. Rights Managed
There are two classes of images available to license. Some images are “Royalty Free” and others are “Rights Managed.”
A royalty-free (RF) image is not actually free. But you pay for the image only one time and can then use it for as long as you like. You do not have to pay any ongoing royalties for the use of the image.
Rights-managed (RM) images are different. Your license fee only gives you the right to use the image in certain formats for a certain length of time.
I would personally never license a rights-managed image for use online. If you had dozens of images on your site, it would be far too complicated to track the expiration dates of all the licenses and keep them all current.
Given Getty’s business practices, using a rights-managed image online seems to be the equivalent of “asking for it.” In other words, you will probably be in violation of copyright at some point, and Getty will come after you even if you’re a good customer.
For online use, I recommend using only royalty-free images or images that you have taken or commissioned yourself.
Some Thoughts on the Price Elasticity of Images
Some images sell for $0.99. Others sell for a few hundred to a few thousand dollars. And some unusually exceptional images may sell for $29,000 for exclusive lifetime rights (as noted by “Harry” in the comments of my original post).
Royalty-free images will always be cheaper since they are licensed to a large number of people. Rights-managed images are more expensive because they are usually higher quality and fewer people license them.
But what baffles me is the price variance on a license for a single rights-managed image. I played around with settings on Getty and found that an image license might cost me $100 or $2,000 depending on the options I choose.
Same image — vastly different prices.
And what if you accidentally choose the wrong options when licensing the image? Will Getty come after you for “damages?” It’s a legitimate question. I did not find their process for licensing rights-managed images clear at all.
Audit Your Sites Now – Before Getty Does
Just like Google uses a “spider” that crawls and indexes your websites, so Getty has a program called PicScout that scans images across the web looking for potential copyright violations.
If you do not audit your sites now, Getty (and other image resellers like Corbis and Masterfile) will.
And if they find even a single image that’s not been properly licensed, they will come after you for damages in the thousands of dollars.
In my case, a contractor reproduced a copyrighted image without a proper license on a domain I owned. Therefore, Getty came after me.
In other cases, people have purchased web templates and software packages — only to find out the product they purchased contained one or more images that were not licensed properly.
Guess who Getty comes after? The people who purchased the web templates and software packages — NOT the people who sold them.
In my opinion, these are all cases of innocent infringement. The people being held responsible thought they were in compliance with the law. Now they’re paying for other people’s mistakes.
Trollogs Think You’re the Enemy
I quickly realized most trollogs do not see you as a potential customer, but rather as an enemy. Just to give you an idea of how trollogs think, check out these comments that were said about me on the Shutterstock forum.
Semmick Photo said:
The dude is full of it. He has no clue what he is talking about and is trying to talk himself into the victim position. He needs to be dealt with just as much as the 90 year old friendly lady who stole Jeffs images.
I don’t know the details of the case he references at the end of his comment, but apparently he wants to stick it to a 90-year-old lady who improperly used some photos.
Elderly people accidentally violate laws all the time! It’s hard enough for people of an average age to stay current on Internet law — but to expect that from a 90-year-old woman is ridiculous.
What’s more ridiculous is this guy’s desire to slap her with a big penalty. Give me a break.
Dunneratt was even more colorful. He said:
He played us off as “those silly photogs”. His attitude is just as crass as any big corporation’s. Threat for threat. He’s playing the same game. Complete hypocrisy.
Its called “talking out your ass”.
Ryan’s not a thief. He’s a crawfishin’ hypocrite. The blog spells it all out. He could stand up like a man and do the right thing but he took the low road.
(Hey! I’ll have to add “crawfishin’ hypocrite” to the list of names I’ve been called!)
On a more serious note, let me ask you a question: Are these the type of photographers you want to do business with?
A List of Photo Resellers to Avoid
If you disagree with the use of settlement demand letters that ask for extortionate amounts of money from innocent infringers, then you can vote with your dollars and take your business elsewhere.
The following companies are known to issue tens of thousands of settlement demand letters every year, many of which are sent to innocent infringers:
- Getty Images
- iStockphoto (owned by Getty)
- Corbis Images
- Jupiter Images
Regardless of the outcome of my particular case, I will no longer support these companies. I recommend you avoid them also.
It’s also important to be aware that SXC.hu was recently purchased by Getty.
SXC offers free images, but now that Getty has purchased the company, I wouldn’t be surprised if they try to retroactively enforce copyright on all the images SXC has offered for free.
Flickr may also become a source of trouble since images can be quickly and easily licensed to Getty from the Flickr interface. (Hat tip to Walt Goshert for sharing that.)
How to Get Photos for Your Websites
I will soon be upgrading my camera so I can build my own personal library of images that I can use when needed. It’s relatively easy to take your camera with you and snap photos of interesting things.
In fact, most of the images I’ve used on this particular blog have been snapped with my Fujifilm camera or my iPhone 3GS.
You could do the same thing. Take your own photos so you don’t have to worry about accidentally infringing on somebody else’s copyright.
Another option would be to commission a photographer in your area and pay him or her directly. My brother-in-law is really into photography, and I will probably hire him at some point.
Last but not least, you can still license royalty-free images from reputable companies. As far as I know, Fotolia is not using the heavy-handed tactics that Getty is. You may consider licensing images from them.
A Proper License Is Not Foolproof Protection
Caveat emptor: Just because you’ve properly licensed an image doesn’t mean you’ll never be harassed. Ellie shared her story on my original post:
I had a photo that I KNOW I paid for… but didn’t have the receipt. I never use anything that isn’t off a site that’s legit (istockphotos etc) ANYway…. I foolishly paid $1500 to Masterfile in Canada (reduced from their orginal charge of $2790) On top of that, I had proof that I had reduced the smallest photo available to even half that size… related to Dad’s Day… on the site. The dates from June 1 to Aug 18…. the site only had 212 visitors (from Google Analytics). So they were nice enough !!!! to drop the price – to $1500. I paid because I was the developer…. and maintained the site. But that was in 2010. Hopefully, I’m smarter than that now. What a racket indeed! :-(
Another person going by the handle “Kaboom” made this astute observation:
I’m fast coming to the conclusion that all images should be treated with suspicion and should be avoided.
Consider if one purchases a $10 image from one of these stock image houses. Also, let’s say that 10,000 others purchase the same image. Fast forward ten years and [...] the stock house investigates who has copyrights and who doesn’t.
Sure, there will be plenty of copyright infringers and they should pay up what’s fair.
But, let’s concentrate on the folks who DID purchase the image rights and have lost the receipt, bill, email or whatever proof they needed. Poof, they get one of these extortion letters and are dragged into paying up.
The trollogs say this will never happen, but Ellie’s story is proof that it HAS happened. And I’d bet money it will continue to happen — unless people vote with their dollars and walk away from companies like Getty Images.
The Trollogs Can Whine All They Want…
…but I will no longer do business with them, nor the agencies they contract with to demand thousands of dollars from innocent infringers.
Remember: I do not in any way advocate stealing photos or violating copyright. That’s why I’ve personally purchased licenses from iStockphoto for about 15 or 20 photos.
But Getty doesn’t care, and neither do the trollogs. They want to rake me over the coals and force me to cough up a thousand bucks for an honest mistake.
That’s why I’m writing about this issue.
You need to be extremely careful about the images you use — and you need to know about the potential consequences of improperly using an unlicensed image.
-Ryan M. Healy
P.S. If you’ve received an extortion letter from Getty or any other photo reseller, make sure you visit Extortion Letter Info.