Pictures at a price

Manchester-based Hemisphere Design and Marketing Consultants has already started to feel the pinch. The agency’s particular difficulties began when it received a letter from the Getty Images Licence Compliance Team in London, advising that Hemisphere had used an image represented by Getty on its website without a valid licence. The letter went on to demand payment of almost £3500, a sum which was “not negotiable”. The letter concluded that a “one-time discount of 15 per cent” was available for prompt payment.

The demand for payment itself was not a surprise, nor a cause for concern for Hemisphere, given how easily images can be used inadvertently beyond their licensed period. However, what did set the alarms bells at Hemisphere ringing was that Getty appeared to be demanding payment not for unlicensed use of one of its images, but for archived copies of Hemisphere’s own design work – containing licensed Getty images – that are retained on the internet.

“Since 2005, several major stock photo houses have been using companies such as PicScout to scan the internet looking for copyright infringements,” says Hemisphere’s Sue Vanden. “Fundamentally, this is a good thing as it raises awareness of intellectual property rights and protects the rights of photographers.

“In the past it was common for suspected copyright infringement to lead to ‘cease and desist’ letters allowing rights to be purchased or images to be taken down from websites. But times have changed. Letters of demand for fines of up to $10,000 are now being received and enforced. What’s scary is that these fines are not only being given in clear cases of theft, but in grey areas stumbled into by designers who intended to comply with copyright.”

On the face of it, this was precisely what had happened to Hemisphere, and the company wrote back to Getty to confirm that the images referred to had been properly sourced and licensed. Two archived images contained incidental inclusion of the licensed images as a demonstration of prior work undertaken by the company.

“These images turned out to be photos of pieces of print we had produced a couple of years earlier that were within the archive area of our site,” says Vanden. “The images were duly licensed and paid for as part of the original jobs, but they were now outside their usage period as the pieces of print only had limited life.”

No doubt the majority of design companies – if not all – will face similar instances where images with prior approval for use are trotted out for the end-of-year awards. While the matter was dropped at Hemisphere, using licensed images in such circumstances may need to be scrapped if the Getty position is indicative of a future trend.

“The implications seem to be enormous,” says Vanden. “We weren’t allowed to even show our work to people in a private meeting if it was out of the licence period. So what would happen if a piece of our work was included in a directory entry or appeared in an awards catalogue? Would this mean we’d be liable for fees on that too?”

The Drum contacted Getty Licence Compliance, which confirmed that Hemisphere’s experience was the manifestation of a new policy implemented during 2006. “A lot of people, non-customers and customers, either by mistake or because they didn’t know, use an image on their website without realising it belongs to Getty,” The Drum was told. “About 85 per cent of the images on websites are not licensed. There are a lot of them out there. We have a company that finds these images for us. They check if there is a licence – if not, we check it again, then a letter goes out.”

We put it to Getty that its approach, which Hemisphere claims runs counter to accepted industry practice, may be over aggressive. Getty disputed this, but did concede that the initial payment letters that are issued demand an arbitrary fee – an estimated ‘average’ amount – and that Getty thereafter relies on the companies concerned to get in touch before a specific amount is negotiated.

“It might look aggressive I suppose,” the spokesman said. “Before, the possibility of finding these images was lower. Now we have this programme and it is worth our while doing. We send out about 1000 letters a month just in the UK. We cannot look at each and every one of them, so we use a general price, based on the average image use on a website for a small size. If people get the letter and contact us, then there is always room for negotiation.

“We have to make it strong enough so people know it is serious, but encourage them to contact us. That is the whole point. It is very difficult to find a balance where the letter is strong enough to be serious, but not too much that it is too harsh. We look at each case individually, and usually some kind of negotiation is possible.”

In its reply to Getty, Hemisphere said it has been long accepted industry practice for companies to show their portfolio of work so potential clients can assess, judge and criticise it. This is accepted under Chapter 3 of the Copyright, Designs and Patents Act 1988, an argument which Getty accepted, and which appears to have put the matter to rest.

However, there is a real risk that companies in a similar position may not be able to successfully argue against such a demand. As a member of the Design Business Association (DBA), Hemisphere was able to obtain an initial legal consultation. As Vanden explains, without legal representation, a smaller agency facing a company of Getty’s size and reputation may find it simpler to pay up without a challenge.

“On receiving a letter like this, a lot of design companies would be terrified of going into battle with a company like Getty,” she says. “So they’d end up paying out to avoid it all getting legal. If we hadn’t had access to the legal advice from the DBA I’m not sure whether we would have dared to start something that might have cost us more in legal fees than the original demand.

“As it is, the industry needs to have a unified approach to this to ensure that its ability to function with adequate ‘criticism, assessment and review’ is maintained. I know we will definitely think twice about using any Getty rights-managed images in any of our jobs in the future.”

Notwithstanding the legitimacy of the claim for payment, Hemisphere’s experience highlights the need for diligence in the correct use of images. No agency wants to infringe legitimate copyright or to act beyond the terms of an agreed licence. However, it will require an effective diary and inventory system to be in place to be sure that all possible errors are foreseen and accounted for in advance.

“This issue certainly highlights the importance of accurate paperwork, reading the fine print and considering commissioning photography if you have any doubts,” Vanden says. She also believes Getty’s approach may be symptomatic of a new approach to enforcing image rights.

“I once read a quote from John Paul Getty III to the effect that ‘intellectual copyright is going to be the oil of the 21st century’,” Vanden says. “With Getty’s approach to buying up its rivals and going to such lengths to scare people into paying additional fees, it looks like they’re doing everything they can to get complete control over the supply.”

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Sue Vanden of Hemisphere advises on how to avoid four risks involved with photo licensing...

1. Your photos were purchased from a smaller stock agency or directly from the photographer, but are now available through a major stock photo house.

Problem: If you do not have a copy of your licence, you may be fined and have no recourse other than expensive legal arguments.

Solution: Make sure you have copies of all licences.

2. Your photos were previously available royalty free, but are now rights managed.

Solution: Make sure your licence clearly states ‘royalty free’. Just proving you paid for the photo may no longer be sufficient.

3. You used rights-managed photos for publications.

Problem: It was once common practice to buy rights only for the publication’s “live” period. Now it appears ANY display or distribution – even of back issues in personal meetings – is subject to censure and fines.

Solution: Seriously consider not using rights-managed photos for publications. It may simply be too risky.

4. You have used a website templates.

Problem: When using third-party templates, you may assume any images are correctly licensed for template distribution. But you can no longer expect that no one will notice unlicensed images, even on low-traffic sites.

Solution: Don’t use templates with images unless you are also supplied with a copy of the licence.

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Have you been targeted by Getty?

If so, email keith.price@carnyx.com