Schneider Rothman Intellectual Property Law Group announced today that it has filed a lawsuit against famous image licensing service Getty Images, asking both for a declaration that no infringement was committed and an injunction against Getty committing “unfair or deceptive practices” in its efforts to enforce its copyright.
Getty Images, and the stock photo industry at large, has a lengthy history of using legal threats both to protect the works it represents and procure settlements from suspected infringers. In 2010, I profiled the industry’s controversial practices, which typically involves identifying matching images through an automated tool and then sending letters to infringing websites, which are usually commercial in nature, that demand a settlement, either three or low-four figures per image, to avoid a lawsuit.
The approach has been both successful and controversial, with tens of thousands of letters being sent per year by some estimates, the campaign has been a source of friction and income for Getty, as well as other image licensing services.
However, Schneider Rothman says that it’s firm was unlawfully targeted. That it didn’t infringe Getty’s copyrights and that the letter was in error. However, unlike others who were wrongfully targeted, they are hitting back, filing a lawsuit that both seeks a declaratory but also fees and costs associated with the lawsuit.
But will this lawsuit force Getty Images to change course? Let’s take a look at the actual lawsuit.
About the Lawsuit
The site, on some of its blog posts, uses a service called Zemanta, which, in part, is a promotion exchange program that shows visitors links to related content from other sites in the Zemanta network.
Zemanta, in finding content related to the article, pulled five different articles from its network. One of those articles was a similar piece on WHAS’ site, which in turn had a cropped but correctly-licensed image from Getty of a woman texting while driving. Zemanta, in displaying the links on Schnieder Rothman’s site, used WHAS’ version of the image and converted part of it to an 80×80 thumbnail that it displayed in the footer of Schneider Rothman’s post.
In short, the image that appears on Schnieder Rothman’s site was a thumbnail of part of a reduced and legally-licensed version of Getty’s image.
However, that didn’t stop Getty’s matching system, most likely powered by PicScout, from detecting the image. Once it was spotted, Getty sent Schnieder Rothman a letter, dated July 1, 2014, demanding $380 for the use of the image, which Getty said only represented the licensing fee for commercial use of the photo.
Schnieder Rothman, however, has declined to pay this fee and, instead, has sued Getty images over what it considers unfair business practices. The firm goes on to point out that, in addition to the fair use issues raised by claiming infringement over a thumbnail, the image wasn’t even hosted on their server. Instead, it was located on Zemanta’s servers.
As such, Schnieder Rothman has also listed Zemanta as a defendant claiming that, should they be found liable for infringement, that Zemanta should be the one ultimately responsible as it was their service that placed it on their site.
The overall theme, for me, is that Getty is clearly in the wrong in this case.
Even ignoring the issues about where the image was hosted and how it got to be on the firm’s site, the use of an 80×80 thumbnail of part of a Getty Image for the purpose of highlighting and linking to another site is an almost certain fair use. The Perfect 10 v, Google case, which Schnieder Rothman cite in their filing, deals with almost this exact issue.
Given the fact that the letter includes a screenshot of the firm’s page where the image was (and still is) displayed, it’s clear that Getty should have known that the use of the image raised serious fair use issues and should not have been a target for a letter.
While I’m personally not sure how much protection the use of Zemanta provides, especially considering that Getty strongly emphasizes its view that the webmaster is ultimately responsible for what appears on their site, regardless of who put it there, that particular issue is almost moot. Sending threatening letters over an 80×80 thumbnail of an image that points to a relevant article that legally licensed it is outrageous.
My biggest complaint about the lawsuit is more technical than anything. The lawsuit conflates Zemanta, which pulls content from other sites to share, with plugins such as YARPP and Related Post Plugin, both of which only pull content from the site they’re already on in a bid to find new relevant content on the same domain.
This might seem like a minor issue, but if Schnieder Rothman is (somehow) ruled to be infringing, YARPP and similar plugins would still be acceptable because they only pull content from the (hopefully legally licensed) pool of images already on the site.
Still, that seems more like a hypothetical debate. While I am loathe to predict the outcome of lawsuits, Schnieder Rothman has a very strong case here and Getty would be wise to figure out what went wrong with this case and how they can prevent it from happening in the future.
Clearly, something went askew with this filing and, hopefully for Getty, there aren’t many others like it out there.
What’s most interesting to me is the timing of this lawsuit. Getty had, in recent years, been making efforts to separate itself from its litigious reputation. In 2012, they revamped their watermark to be more informative and user-friendly and earlier this year they began offering millions of photos for free embedding.
Threatening an intellectual-property focused law firm over a thumbnail of part of a licensed Getty Image and then being sued over it is going to unwind a lot of that goodwill they’ve built up over the years, in particular with the tech community.
While Getty’s letter campaign never really went away, it did stop generating headlines. However, today brings a new and very negative headline about that campaign, one that’s going to put Getty’s legal practices back in the spotlight, likely in a big way.