The Stock Photo Industry’s Massive Copyright Campaign

Here’s a seemingly simple question: Which of the following activities is most likely to get you a threatening letter for copyright infringement? Pirating a movie? Sharing a song? Or Posting a stock photo to your site?

Since the RIAA has stopped its litigation campaign, the odds of being sued for one night of casual, or even less-than-casual music sharing is almost nil. The same is true for movie file sharing. Though the U.S. Copyright Group has ramped a very large litigation campaign it only targets a small subset of movies, largely independent films such as “The Hurt Locker” and even then can only target a small percentage of the potential sharers.

Surprisingly, your best chance of getting hit with a copyright infringement demand letter, almost certainly, is for posting stock photos to your blog or website. Though it may seem like a relatively harmless thing, stock image companies have been especially aggressive in dealing with copyright infringement and have mounted a campaign that has lasted almost a decade against those who use their images without permission.

Some call this copyright extortion, others good enforcement. But it’s a campaign that has largely flown under the radar of most in copyright circles and one that has barely been mentioned in the press.

However, it is a campaign all bloggers and webmasters need to be aware of as it is one that could very easily come back to bite them.

How it Works

Simply put, image matching technology has moved forward a great deal in the last five years and the early adopters of it were primarily stock photo and image companies. However, rather than simply issuing takedown notices or cease and desist letters, many of the companies, most prominently Getty Images, have been sending out demand letters, telling infringers they have to pay as much as $1,000 or more per image.

Unlike the RIAA and the U.S. Copyright Group cases, there are almost no lawsuits filed in these cases. This means there is no public record other than with the handful of cases that are discussed publicly or that make it to court. There’s also no press machine promoting these cases, unlike with the RIAA, so there is no information about who is being targeted and how many letters are being sent out.

This has made gathering statistics on the matter almost impossible. One law firm has handled 300 cases but a more complete estimate from the L.A. Times, says there are “tens of thousands” of letters per year.

Since the campaign has been ongoing since at least 2006, it is very likely that the number of letters sent over stock images exceeds the number of music and movie industry lawsuits combined (35,000 for the RIAA and 14,000 to date for the U.S. Copyright Group) (Note: The MPAA primarily targets the sites behind file sharing, not individuals, though the MPAA did file a small number of suits against individuals, also, the U.S. Copyright Group may be making a bid to leapfrog the stock photo industry in a few weeks.)

But despite the volume, the campaign has gone largely unnoticed. Few press releases have discussed the letters and almost no media coverage of the campaign.

How has this gone unnoticed? The answer is actually fairly simple.

The Big Difference

Why is it stock photo companies can send small companies and individuals thousands of threatening letters with almost no backlash but the RIAA and MPAA has a news story published every time they file even just a few hundred? There are two reasons.

First, the movie and record studios widely publicized their cases. Most would say that their efforts were as much about publicity and attention as actually earning any money. Judging from the reported figures in the RIAA cases, they were far from profitable. However, the stock photo companies have been very quiet about their efforts. Getty Images, for example, does not have a single press release on the topic on their site (at least not that I could find going back to 2000).

The second, and more important reason is the way in which the two proceed. When the movie or record studios want to target a file-sharer, they need to first get that person’s information as all they usually have is their IP address. That requires filing a “John Doe” lawsuit to get a subpeona from the ISP.

However, with the stock photo companies, most sites, especially businesses, are more than happy to put all of the needed contact information on their site or have it in their whois information. This lets the stock photo companies skip the expense and publicity of a lawsuit and go straight to a private demand letter. This makes the process much less expensive and much less public.

It also makes it much more difficult to track these cases and see what happens with them. We know a few make it to court though most seem to be settled before that point (likely after some negotiation) and others are dropped for various reasons.

Unfortunately, most of the evidence there is anecdotal and the nature of the campaign makes gathering real statistics virtually impossible.

Problems With the Campaign

The same as the other content industry’s massive anti-piracy campaigns sometimes went astray, so too has the stock photo one.

Part of the problem is that at least many of the threatening letters have been sent to companies who either used professional design firms or thought they had acquired the rights from a third party. While this may not excuse the infringement in court, it certainly affects the damages likely to be awarded and generates sympathy for the target.

This actually played a key role in a recent court decision on the subject (see left-hand side) where MasterFile, one of the more aggressive agencies, filed suit against a small cycling tour company for use of several of their images. MasterFile won the suit but it was a Pyrrhic victory that saw them awarded just $1,120, less than their initial demands, and spend over $4,000 in legal fees.

However, other issues have been repeatedly raised with these cases including whether the work has been properly registered with the U.S. Copyright Office and even if the agency has the authority to act on behalf of the content.

But more than anything, the campaign has been controversial. Some have referred to it as “legalized extortion” and a simple search for “Getty Letter” turns up dozens of sites where recipients are complaining about the threats.

On the other hand, a representatives from the industry put things in a different light. One such representative from Getty once said that, “The thing we try to do is just have a conversation with the customer. We make them aware that it has happened and that they need to look at addressing it and making sure it’s licensed. It goes into writing at the point when there’s denial of use or people saying they didn’t know.”

In my personal experience though, most people are blindsided by these demand letters. I’ve been approached by half a dozen people who have been given one of these letters, none received any warning.

By comparison, no one has asked me for help with RIAA or MPAA lawsuit threats.

What is Being Done

There are several things that are being done to address these issues. For one, attorneys Matthew Chan & Oscar Michelen (Correction: Matthew Chan is not an attorney though Oscar Michelen is. Chan is, however, the founder of the site in question. My apologies for the confusion.) have set up a site and offer reduced-rate legal counsel for those who receive these letters.

However, the stock photo industry has also been contributing some to mitigating this issue. A group of the major agencies launched the site StockPhotoRights to inform consumers about how to license photos, though it also cautions users against using CC-licensed images.

Beyond that though, it is crucial for webmasters and site owners to be aware of this campaign and take steps to avoid getting caught in it. This means, first and foremost, ensuring that you properly license all of the images you use and that, if you have a design firm build a site for you, that you are sure they have clearance on all of the images they use. Remember, even if you didn’t put the image on your site, you can still be held liable.

Corbis’s senior counsel, Claire Keeley, once said that “My goal is to make my job obsolete. The ideal scenario is we have businesses properly licensing these images through sales channels.”

Unfortunately though, it seems as if there is no end in sight and with more companies using this method for resolving copyright disputes and increasing international expansion, the number of letters sent seems to be poised to grow.

An Alternative

When I was first brought on at CopyByte, the copyright and plagiarism consulting firm I now own, I was brought in to do the same kind of enforcement that Getty Images and others do, but for written works.

However, rather than send countless threatening letters demanding thousands of dollars in damages, we took a different approach. We sent a “soft” cease and desist letter with a sales pitch inviting people to become paying customers. Many signed up. With the nature of the client’s business this was more valuable over the long term than a quick settlement.

Though the project ended, it was a success and it was done without damaging the client’s reputation or causing any ill feelings. In fact, despite sending hundreds of letters, only one recipient was upset in any appreciable way and compliance was extremely high. Many were actively grateful for the way the situation was handled and signed up because of that.

This exact system isn’t right for every industry or every business, and it probably isn’t right for the stock photo industry, but it shows that there are other solutions to sending threats and demanding settlements.

One just has to be willing to experiment to find the correct approach.

Bottom Line

If you run a website, whether for your business or just a blog, you need to be careful about how you obtain the images you use. There are many good, free and legal ways to get images for your site, including one owned by Getty, but you need to be careful about how you use them.

Though it is unclear how effective this campaign has been, there is little doubt that it has been widespread and has impacted thousands of webmasters of all stripes. Webmasters would be wise to keep this in mind whenever they reach for images to use on their site.

Because even if the threat is dismissed or dropped without payment, it is still a cause of fear and stress until the matter is resolved and is something no one wants to endure.

Fortunately, it is a fairly simple problem, just requiring a little more attention to where your images come from.

Disclosure: I recently gave a webinar for Digimarc, a company whose detection technology is commonly used for this type of enforcement though, obviously, not exclusively.

35 Responses to The Stock Photo Industry’s Massive Copyright Campaign

  1. Who needs these guys? Flickr alone hosts hundreds of millions of Creative Commons photos. Those on http://www.wpclipart.com are actually public domain. The largest search engines allow searching for reusable images from many other sources. Why would anyone bother to tangle with a bunch of overprotective jerks who think their work is valuable just because it exists?

    • guest says:

      Some of these images could later be bought or may have been up on some of these sites without permission as has been the case. These companies are coming after people even under these circumstances retroactively.

  2. [...] The Stock Photo Industry’s Massive Copyright Campaign Since the RIAA has stopped its litigation campaign, the odds of being sued for one night of casual, or even less-than-casual music sharing is almost nil. The same is true for movie file sharing. Though the U.S. Copyright Group has ramped a very large litigation campaign it only targets a small subset of movies, largely independent films such as “The Hurt Locker” and even then can only target a small percentage of the potential sharers. [...]

  3. Lots of people need them. Part of the problem is that there are other rights than copyrights that need clearing, such as privacy rights for one and stock photo agencies make sure those rights have been obtained too.

    The main thing they provide is legal indemnification. If that CC or PD image you use turns out to be an infringement of some third party's work, you have to defend yourself. If a stock photo turns out to be infringing, the company pays the tab.

    Corporations like this everyday users though, have little need. These cases are VERY rare but corporations like having their bases covered. That's why they are in business, one of the key reasons at least, and why they are so aggressive about stopping infringement of their work.

  4. Marc says:

    While photo copyright advocates have their share of fanatics, there is a clear distinction to be made here. For the most part, file-sharers don't think they're doing anything wrong because “they're just watching a movie,” or listening to music, or whatever, and they're not “making money.” This of course is legally incorrect and morally questionable, but it's a point.

    Contrarily, anybody who uses a stock photograph to promote their business or otherwise generate revenue for themselves without paying the owner has no moral defense whatsoever. (Suing people for putting stock photos on personal blogs unrelated to commercial activity would be closer to the RIAA et al kind of thing. That does happen but not often.) It's not yours, you knew it wasn't yours, and you took it and made money with it. You have no moral defense whatsoever, and you never had any legal one. Pay. Up.

    As to people who hire outside designers to do their websites and end up with liability they didn't directly incur, I sympathize and I think that it's reasonable to ask for a license fee before dropping the L-bomb, but we hold people responsible for their employees and contractors all the time in lots of other fields. If United contracts LocalCaterer to supply inflight meals at Local Airport and somebody gets food poisoning, you think United won't be a named defendant in the suit? Would anybody find that unreasonable?

  5. I understand what you are saying but I have to disagree on two points.

    First, I don't think it is as clear as you say that people understand when they use a stock photo that they are violating the law for two reasons.

    For one, these lawsuits heavily target small businesses and sole proprietorships. Often times, the same as with the RIAA and MPAA cases, they are largely individuals who don't realize what they are doing. Those who approached me were exclusively sole proprietors (like myself) who didn't realize that they were infringing.

    Second, due to the orphan works issue, many run across the photographs and images on other sites without realizing who owns them or that they even can be licensed. In many cases, they find them on sites that claim that the content is available for reuse (such as sites that use CC licenses but don't make it clear the image is not licensed as such).

    This leads into the second problem, the “innocent infringer” question. The problem is that, in many of these cases, whether through a contractor or a genuine misunderstanding of the license applied, the damages that could would award are likely less than the settlement amount. This is what happened in the MasterFile case listed above.

    The campaign relies on the fact that it would be more expensive to hire an attorney and defend the case rather than the actual damages and that, to me, feels sleazy. It's a common legal tactic, especially in copyright circles, but one that feels wrong. Using the expense of an attorney to demand a higher settlement than what the law would allow.

    In short, the campaign may have some differences to the RIAA/MPAA case but it isn't that everyone the photo industry is going after knows what they are doing because they are a business. Businesses are made up of people and smaller ones are often times little different from individuals, prone to the same mistakes and misinterpretations.

  6. Marc says:

    Big businesses have clearance procedures, and when they *do* mess up, they tend to pay up when approached with certainty. (The main exception, ironically, is the news media, who just start screaming “fair use” and “first amendment” every time they steal something from somebody.) The vast majority of serious infringers are, in fact, small to medium sized businesses, so it's not surprising that they are the ones who get the most letters.

    I personally have no sympathy for the “I'm too little to know any better” defense. This is 2010. People have been reading about copyright lawsuits for years. Anybody who's operating a legitimate business is already subject to fifteen jillion other regulatory matters and, frankly, if you're not sophisticated enough to properly clear IP you use to advertise your business, you're probably not sophisticated enough to be running a business. And if you don't understand that just because you found it on the web someplace doesn't mean it's free, see previous sentence.

  7. While largely I agree with you on the “I'm too little to know any better” defense it seems odd to me to contrast your most recent comment with your first where you said that, with file sharers,

    “For the most part, file-sharers don't think they're doing anything wrong because “they're just watching a movie,” or listening to music, or whatever, and they're not “making money.” This of course is legally incorrect and morally questionable, but it's a point.”

    As I said in my comment, businesses are made up of people and small ones are made up of just a handful that may not be experts in copyright. It seems odd to say that “if you're not sophisticated enough to properly clear IP you use to advertise your business, you're probably not sophisticated enough to be running a business” after saying that the difference between the RIAA/MPAA campaigns is that file sharers aren't aware of what they are doing when, quite clearly, neither are the users of stock photos being targeted by this campaign.

    I'm trying to understand the exact separation between the two. Is it that, when someone starts a business, they are expected to be knowledgeable about copyright when a file sharer is not? The RIAA/MPAA suits are the ones that have been heavily publicized, not the stock image ones, which is why I wrote this post.

    To be clear here, I'm not trying to cast any judgment on the stock photo industry (I tried hard not to) nor am I casting any judgment on the RIAA/MPAA. Rather, I wast trying to alert people to the campaign, which has gone almost entirely unreported.

    To also be clear, I'm not trying to attack or defend, but rather just show that these issues are complicated and nuanced and there are no hard lines here. I certainly don't have all of the answers, just a lot of questions…

  8. Marc says:

    I would say that the main distinction I am making, morally (legally there's no difference,) is that non-commercial users often (usually? almost always?) think that file-sharing etc are okay as long as you're not making money – selling access to your server, charging per download, selling burned DVDs of movies, etc, etc. That's wrong, but it's *understandably* wrong, and it's at least a morally defensible stance at first glance.

    Contrarily, once you are making a commercial use of somebody else's IP, you shouldn't have to be a copyright lawyer to understand that you're not supposed to use OTHER people's stuff for YOUR business without paying them for it. That legally incorrect but morally understandable justification just goes away.

    Consider, for a very crude analogy, the trash cans usually situated outside retail businesses. Suppose I am walking down the street and dispose of my ice-cream wrapper in the trash can of a business I do not patronize, have never patronized,and never will patronize. This is, in a sense, free-riding, but on the other hand, it's an ice-cream wrapper, and better that then it goes on the sidewalk. So the business owner, if they consider the matter reasonably, might think, “at least it's not on the sidewalk, and hey, maybe they'll remember I have a nice trash can and walk by the store more often, perhaps eventually purchasing something. So I won't say anything.”

    Now consider a situation where the hot-dog car vendor who works the street outside the business stops every day and dumps all his garbage in the bin. The hot-dog vendor doesn't have to pay trash disposal fees. But the store owner has to pay to clean up the garbage. Even a person not well-versed in the intricacies of the law of trespass and easement can see that the two situations are not morally comparable. The hot-dog vendor is making money and free-riding on somebody else who has to pay money to provide the service, which is being used all out of proportion to its reasonable offer, or the potential benefit to the store owner.

  9. [...] to Jonathan Bailey at Plagiarism Today, a person’s “best chance of getting hit with a copyright infringement [...]

  10. [...] environment are a probable fair use regardless, the odds of actual trouble are very slow. You are much more likely to have a copyright dispute over a stock photo that you place in your blog than a logo.That, in turn, is why I use logos a great deal on this site [...]

  11. Syed Ali says:

    the problem is that if istock or some other company have a problem with the image just send e-mail to the site and they will take it down if they don’t have a valid source of the photo.
    What this company is doing is declaring you a criminal in there own court and asking for money which is not right as web is infinite and will keep on growing there should not be any copy rights on web images as its accessible to every one.
    If would say file a law suit against Browsers like I.E. , Firefox etc etc which give you options to download the image on the first place lol

  12. Aple342 says:

    A friend with a small business had a website designed by a contractor. Years later they received an extortion letter from Masterfile requesting thousands of dollars. The website designer was gone by then, there was no way to get back to them. Masterfile eventually took a settlement from the business's insurance policy. (small businesses, expect your rates to increase)

    With the rates they charge, one wonders if anyone actually licenses Masterfiles' photos or do they just make money from lawsuits?

  13. Matthew Chan says:

    You are absolutely right. This whole controversy is so pervasive and widespread, it is hard to believe it is still considered an underground subject. Any website owner can get hit with a letter at anytime.

    This is one of the best written and well researched article I have read on this subject. Thank you for your perspective.

    • Rick Cohoon says:

      Matthew…thanks to you and Oscar for your hard work on behalf of "Getty victims." I will be donating to your website.

  14. [...] } }); });Anyone who has listened to the Copyright 2.0 Show or read my write-up on the stock photo industry’s ongoing legal campaign, you probably know I’m no fan of mass litigation, such as what we have seen from the RIAA, [...]

  15. Erniep says:

    we posted a picture in dec 98 that was registered 3 weeks before posting. now, 2010, getting threatened with a suit over it.

  16. Interesting says:

    My friend just got a letter for a defunct website she had. She has the contract still from the company that built it for her law firm. She has spent years as a top commercial litigator ……and can't wait for the lawsuit……

  17. [...] copyright holder would find out. However, as technology for tracking images on the Web has improved the stock photo industry has been on a massive litigation campaign and even mainstream media outlets have started suing over [...]

  18. [...] disputes quickly and making sure that the person with the registration is happy.For example, the stock photo industry has used their copyright registrations to procure thousand dollar plus settlements from infringers as part of their controversial [...]

  19. RebeccaRealtorGirl says:

    I am a Realtor in Colorado who used a company, Hillsoft to create my website 8 – 9 years ago. I am now being sued for the stock images that were used. I called Hillside the second I rec’d the first notification from Masterfile and they removed said images – still saying they had ‘not created this site in the first place”??? Scary – considering they DID! Anyway, I’m now – as of this past Monday – in receipt of a letter from an attorney stating that they are sueing me for $16,000 for the images ($2k each). HELP!

  20. RebeccaRealtorGirl says:

    PS – I would have paid for the images had I had an inkling that they were obtained by HIllside illegally – however, being completely computer NON SAVVY – I did not nor could not know. It’s not a matter of “hiding my head in the sand” – I just never knew.

  21. plagiarismtoday says:

    @RebeccaRealtorGirl I would serious look at visiting extortionletterinfo.com and talking with the guys there, they are the ones with the most experience in this.

  22. RebeccaRealtorGirl says:

    Thank you! I will check it out. The thought of putting money into this – when I truly feel I’ve done nothing wrong is so infuriating … I just cannot tell you! I’m contacting my insurance provider as well. Thank you again for your reply – that is so kind of you.

    Rebecca

  23. RebeccaRealtorGirl says:

    I have contacted the attorney’s – GREAT information by the way..thank you so much!

  24. [...] today, of all the groups that have been the most active with legal threats against bloggers, the stock photo industry has probably been the biggest. Having sent tens of thousands of legal threats to website owners, many stock photo companies have [...]

  25. [...] today, of all the groups that have been the most active with legal threats against bloggers, the stock photo industry has probably been the biggest. Having sent tens of thousands of legal threats to website owners, many stock photo companies have [...]

  26. Matthew Chan says:

    One of the most recent and surprising major developments in the whole massive stock photo settlement demand letter campaign has come from lawyers associated with Hawaiian Art Network LLC.

    As contributors submit their demand letters to us, we look into the issuing party. Often in cases like Getty Images, they have come from reasonably established law firms. However, more recently, we are discovering letters coming from very inexperienced lawyers with very little online presence and minimal legal experience. In other words, their letters are far nastier than their credentials seem to indicate.

    Because we have done more investigating and reporting, a few of these lawyers have moved against ExtortionLetterInfo.com by aggressive attempts to suppress information through exaggerated claims of defamation, libel, slander, and yes, even copyright infringement.

    We have tried to be transparent throughout this entire process. It isn’t enough to attack innocent infringers but now they are trying to suppress our ability to share the information we have gathered.

    Smaller photo companies and even private photographers have gotten into the game and they don’t like being identified or the letters they issue to be openly shared. Beware.

    • BuddhaPi says:

      It is astounding to me, that those that choose to step into this arena, behave like this when called out. In my opinion this goes much deeper than the attorneys trying to protect whatever reputation they may have. I’m generally not a conspiracy buff, but there are just to many bits of info available in regards to H.A.N.

  27. [...] illegally using just a single image can cost you of 1000s of dollars.  Here are a few articles to scare you [...]

  28. [...] one others can learn from.Bottom LineOver the years I’ve been very critical of Getty Images, including their campaign of sending out threatening letters and some of their mergers.However, I also want to give credit where credit is due with Getty and [...]

  29. [...] images. The issue with Getty Images and PicScout is that they engage in what has often been called Copyright extortion (see here), and many thousands of site owners have received letters with claims for thousands of [...]

  30. [...] is the Getty Images (and other stock photo sites) campaign. Though I’ve been critical of the campaign in the past, it’s hard to call it a “troll” operation. Though it is, most likely, a profit [...]

  31. [...] then though, the stock photo sites are primarily targeting business, large and small, where they hope to be able to get money. So if a false CC-licensed image winds up on a personal blog or a site, the odds of there being a [...]

  32. […] More importantly, they’ve been very aggressive with copyright enforcement over the years, launching a massive copyright campaign targeting businesses that used their photos without licensing […]

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