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Author Topic: Getty: terminated  (Read 9529 times)

DavidVGoliath

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Getty: terminated
« on: March 30, 2014, 02:49:28 PM »
I've not been around in a while so this is a quick, brief update.

After digging in to many issues, I terminated my contract with Getty Images and have pulled my entire library of work from their archives too. There's no single reason behind my decision - rather, it was an amalgamation of several issues.

I'm doing my best to convince other shooters I know to leave the Getty fold and/or not sign with them in the first place; I guess the short version is that I've uncovered a several practices which have highlighted that they only have their own interests - and those of their largest clients - at heart.

Their aggressive race to the bottom and seeming lack of desire to comport their business in an ethically and morally sound manner is no longer a practice I can support. Their actions have - and are - causing significant damage to the wider community of content creators and content users alike.

Greg Troy (KeepFighting)

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Re: Getty: terminated
« Reply #1 on: March 30, 2014, 05:03:16 PM »
DvG, thanks for the update, we were wondering what happened to you.  I would be very interested in hearing which practices/what you uncovered that made you decide to leave.

Every situation is unique, any advice or opinions I offer are given for your consideration only. You must decide what is best for you and your particular situation. I am not a lawyer and do not offer legal advice.

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stinger

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Re: Getty: terminated
« Reply #2 on: March 30, 2014, 10:10:05 PM »
Bravo DvG!  An out and out "Stand up" move by you.

 If there is anything we can do to help, please let us know.

There may be some here willing to help publicize your findings - with your permission I mean.  A serious campaign by photogs leaving Getty could be the impetus they need to change their ways.

DavidVGoliath

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Re: Getty: terminated
« Reply #3 on: March 31, 2014, 12:14:50 PM »
Like I said: there's no one single issue that made me decide to leave - though the writing was on the wall for over a year. If I had to sum up my largest concerns, they would be (in nor order)

a) Their treatment of the Daniel Morel case
b) The claims laid out by the four sports shooters in their ongoing case against Getty / NFL
c) The "race to the bottom" regarding royalties, which were cut from 50% to 35% for seemingly no other reason than it helped to streamline Getty's accounting processes.
d) Their contractual "right to control claims" for images they do not own the copyrights to

The last one was probably the straw that broke my back. I couldn't find any accounting for an image use that I discovered on the website of a major blue-chip tech company.

I asked Getty to look into it on three separate occasions over the course of a year (I'm a patient man) and, when they finally got back to me and said "no, it's never been licensed by us" I said thanks, I'll pass this to my attorney.

The agent then emailed me back almost immediately citing a clause in my contributor agreement saying that Getty had the right to control my claim - my own damn fault for not scrutinising the contract at the last amendment. I disagreed with this as they didn't own the rights to the image (i did) and told them as much and, pissed off that it had taken them over a year to simply tell me an image had never been licensed (info that should be at their fingertips) I told them screw it, I'm cancelling my contract and no, I'm not going to co-operate with your request for infringer details.

My suspicion is that if they didn't know that the image was being infringed upon, they might have provided it to the company in question without charging them. If I find this to be true, all bets are off.

Greg Troy (KeepFighting)

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Re: Getty: terminated
« Reply #4 on: April 01, 2014, 09:56:32 AM »
DvG, thank you for sharing some of your reasons for leaving Getty Images.  I agree with you that the Morel case was bad but it's not the first case of Getty doing this.  The Rock Photo case was also recently (privately) settled.


I have a question about the contract if you don't mind.  If Getty decides to send out one of their settlement demand letters on an image and they receive payment does the photographer see any of that money or does Getty keep it all?

This has been a question we have been trying to figure out for sure for a while.  We had one letter recipient a while back who called the photographer after receiving a Getty letter to try and explain what happened.  He was told by the photographer that it was out of his hands because Getty had total control and that he would see a penny of it anyway.

I am a firm believer that artists should be compensated for their works, I disagree strongly with Getty's approach to this and their business model.  As hypocritical as Getty is it would not surprise me after making their claims that they must protect their artists that they keep all they money for themselves.

 
Every situation is unique, any advice or opinions I offer are given for your consideration only. You must decide what is best for you and your particular situation. I am not a lawyer and do not offer legal advice.

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DavidVGoliath

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Re: Getty: terminated
« Reply #5 on: April 01, 2014, 01:50:12 PM »
Here's the text of the clause in question:

"1.11 Right to Control Claims. Getty Images shall have the right to determine, using its best commercial judgment, whether and to what extent to proceed against any third party for any unauthorized use of Accepted Content. You authorize Getty Images and Distributors at their expense the exclusive right to make, control, settle and defend any claims related to infringement of copyright in the Accepted Content and any associated intellectual property rights (“Claims”). You agree to provide reasonable cooperation to Getty Images and Distributors and not to unreasonably withhold or delay your cooperation in these Claims. Getty Images will not enter into any settlement that will compromise your ownership of the copyright in Accepted Content or that prohibits your future conduct with respect to Accepted Content without your prior written consent. Getty Images will pay you Royalties on any settlements it receives from Claims. If Getty Images elects not to pursue a Claim, you will have the right to pursue it."

Now, given that Getty licenses images to its largest customers for $1.00 or less (subscription clients especially - I've seen it on my statements), and given that they pay a 35% royalty, the scenario that is extremely plausible is this: when a photographer like me discovers that an image has been used without license by one of Getty's largest clients, the potential exists for Getty to turn around and say "hey, let's not sour things... we'll roll in a back-dated license for the use at your normal rate" - the language is there in the term I've referenced. I'd have pointed towards a major infringement for effectively bugger all to be done about it.

This reeks of a double-standard to me: If you're a Getty client, you'll get a disapproving glance and a hey-let's-not-rock-the-boat-we're-friends-mkay?... if you're Joe Average and not a currently a source of income for Getty, you'll receive a settlement offer letter instead and might end up being litigated against.

There's no way on this earth I could be a party to such business practices and, like I said, it's one of the key factors as to why I quit them.

stinger

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Re: Getty: terminated
« Reply #6 on: April 01, 2014, 02:27:41 PM »
That's a very interesting clause.  It seems to me that this part: 
Quote
If Getty Images elects not to pursue a Claim, you will have the right to pursue it.
doesn't really jive with the Digital Media Copyright Act.

My recollection, last time I took a look at the DMCA was that one, and only one entity, could retain the right to pursue claims over an image.  Does anyone know how they get away with that?

Greg Troy (KeepFighting)

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Re: Getty: terminated
« Reply #7 on: April 01, 2014, 02:40:32 PM »
Thank you for posting this.  Unless I am reading this wrong I see another issue.

Quote
You authorize Getty Images and Distributors at their expense the exclusive right to make, control, settle and defend any claims related to infringement of copyright in the Accepted Content and any associated intellectual property rights (“Claims”).

Here it says Getty has exclusive rights when it comes to making a claim on an image.

Quote
If Getty Images elects not to pursue a Claim, you will have the right to pursue it."

Then here they says you can pursue the claim if they don't want too.  How can it be both?  If Getty didn't want it and you pursued the claim in court and it was known that the image in question was in the Getty library could the point be made that you don't have the right to pursue that claim even though it is your image because you signed over the rights?
Every situation is unique, any advice or opinions I offer are given for your consideration only. You must decide what is best for you and your particular situation. I am not a lawyer and do not offer legal advice.

--Greg Troy

DavidVGoliath

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Re: Getty: terminated
« Reply #8 on: April 02, 2014, 04:13:27 AM »
Greg,

I imagine that, if Getty declined to pursue a claim, they'd that fact in writing to the creator - effectively releasing / transferring said right. It's a perfectly valid and sound option under law to the best of my knowledge.

Oh and for what it's worth, the full contract language states that the copyright for images submitted as a contributor always vests in the author of the image - Getty don't claim the copyright over works that are submitted... only the right to pursue legal action if they're infringed upon; that's why clause 1.11 also states that the creator must cooperate in the claims process. In effect, it's akin to appointing Getty as your copyright attorney - but without the transparency.

I can clearly imagine a scenario where Getty issue a demand letter for a three or four figure sum and, when a payment is received, they first deduct all their "expenses" for pursuing the claim, leaving a fraction of the sum recovered from which to pay the 35% royalty to the contributor. There's nothing in the clause - or anywhere else in the contract - that offers up a proper accounting of expenses etc.

At least if I'm dealing with my own counsel, I know how much a claim is costing me as they have to provide a thorough breakdown of costs. Getty's version of handling a claim is analogous to "hey, trust us, okay?"... not bloody likely! It smacks of the way that the larger players in the film and music industry obfuscate their costs so as to reduce net royalties liabilities (for those curious on what I mean, have a look at http://www.deadline.com/2010/07/studio-shame-even-harry-potter-pic-loses-money-because-of-warner-bros-phony-baloney-accounting)

Consider how Getty appears now: they aggressively pursue infringements of content they distribute, yet also seek to reduce fair compensation to (or avoid compensating altogether) the content creators themselves... and/or infringe on their rights too.

I now hold the personal opinion that Getty are a de facto enemy of content creators; the Morel case showed their true colours, the ongoing case of the seven sports shooters vs. Getty / AP / NFL has brought to light some very troubling allegations which - if proven - will eclipse even the Morel case in terms of impact. I hope that the photographers in question don't settle and the matter gets forced out into the open.

Greg Troy (KeepFighting)

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Re: Getty: terminated
« Reply #9 on: April 02, 2014, 09:04:33 AM »
DvG,

Thank you, that explanation was very informative and helpful.

I have following the NFL case as well and downloading the key court documents as they become available, of course since this is a newer case there is not much available yet.

Another case that could be potentially devastating to Getty is a patent infringement case which if I read it correctly claims Getty's entire system of online licensing is based on patented technology which Getty has not licensed from Uniloc.

http://www.extortionletterinfo.com/forum/getty-images-letter-forum/getty-images-sued-for-patent-infringement/
 
Every situation is unique, any advice or opinions I offer are given for your consideration only. You must decide what is best for you and your particular situation. I am not a lawyer and do not offer legal advice.

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DavidVGoliath

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Re: Getty: terminated
« Reply #10 on: April 02, 2014, 10:03:16 AM »
Another case that could be potentially devastating to Getty is a patent infringement case which if I read it correctly claims Getty's entire system of online licensing is based on patented technology which Getty has not licensed from Uniloc.

I'm afraid that, on general principle, I can't root for Uniloc - I trust you've seen the information here?
 
http://en.wikipedia.org/wiki/Uniloc

I suspect Uniloc are going to run into serious prior art issues here, as their patent was granted in 2000, which post-dates Getty Images' presence on the internet, not to mention other libraries such as Corbis.

Getty's retention of counsel from Perkins Cole LLP points to this as, although Patent, Trademark and Copyright law have some principles in common, litigating the issues are very different tasks. If I were in business at a relevant level, I'd retain separate specialist counsel for each branch of IP law.

Just my €0.02

Greg Troy (KeepFighting)

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Re: Getty: terminated
« Reply #11 on: April 02, 2014, 11:21:19 AM »
I had not seen that about Uniloc.  Looks like it will be the battle of the trolls!

Another case that could be potentially devastating to Getty is a patent infringement case which if I read it correctly claims Getty's entire system of online licensing is based on patented technology which Getty has not licensed from Uniloc.

I'm afraid that, on general principle, I can't root for Uniloc - I trust you've seen the information here?
 
http://en.wikipedia.org/wiki/Uniloc

I suspect Uniloc are going to run into serious prior art issues here, as their patent was granted in 2000, which post-dates Getty Images' presence on the internet, not to mention other libraries such as Corbis.

Getty's retention of counsel from Perkins Cole LLP points to this as, although Patent, Trademark and Copyright law have some principles in common, litigating the issues are very different tasks. If I were in business at a relevant level, I'd retain separate specialist counsel for each branch of IP law.

Just my €0.02
Every situation is unique, any advice or opinions I offer are given for your consideration only. You must decide what is best for you and your particular situation. I am not a lawyer and do not offer legal advice.

--Greg Troy

DavidVGoliath

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Re: Getty: terminated
« Reply #12 on: April 04, 2014, 04:05:05 AM »
I figured you'd have that opinion, Greg  ;)

Patent abuse is an ugly thing, especially when companies cease to innovate and simply sit back and strong-arm the competition through legal process, especially when there are very compelling cases for prior art which would invalidate the patent.

It's also disappointing when some companies use their patents as a means to stymie would-be competitors in the marketplace (I'm looking at you, Apple & Samsung) - as if it's not enough that they can be successful, they have to actively destroy their rivals.

On a personal level, I'd far prefer if Getty were stung by those they claim to represent: creative artists. I have a feeling that the NFL case will be one such blow. What worries me is that, in the light of these actions, creatives still support Getty by funneling their work through them. That's the part that confuses me the most.

stinger

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Re: Getty: terminated
« Reply #13 on: April 04, 2014, 09:38:03 AM »
Maybe someone needs to show them a better way.

I work with a lot of computer software consultants.  Many of them are proud to call themselves independent consultants, but they don't really know how to market themselves.  They look for big gigs where they don't have to spend a certain amount of time each week selling themselves.  The ideal opportunity for them is one client who will employ them full time.  To me, that seems like a definitional misnomer.

I would think most photographers like taking pictures and not all the work that goes into selling and distributing them.  Getty makes it appear that they will handle all the work the photogs dislike.

Maybe someone needs to show them a better way.  Maybe ELI can host a forum for photogs to help them find more or better ways to market themselves.  Putting their collective heads together could do a whole lot of good for this industry.

Robert Krausankas (BuddhaPi)

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Re: Getty: terminated
« Reply #14 on: April 04, 2014, 10:07:45 AM »
I personally would love to see a complete contract that is offered up to contributors, not that anyone would like to share it with us.. : )
Most questions have already been addressed in the forums, get yourself educated before making decisions.

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