As promised here is part three in my series of articles about the business practices of Jonathan Klein and Getty images. As before I will also post this in a thread of its own just to make sure there is a nice SEO bump in the search results for Jonathan Klein and Getty images. Enjoy!
Before getting into the meat of this article I wanted to state that wherever possible I have linked to sources where I have obtained my information and that statements not directly reporting on the facts of the article are my own personal opinions.
This is part three of my series of articles focusing on the Jonathan Klein and Getty images has a history of questionable business practices. Previously I spoke about two separate stockholder lawsuits against Jonathan Klein and the top management at Getty which alleged that they were backdating stock option grants to historic low prices and lining their pockets at the company’s and stockholders expense. If you would like to read this article it may be found here:
http://www.extortionletterinfo.com/forum/getty-images-letter-forum/jonathan-klein-and-getty-images-a-history-of-questionable-business-practices/Next was an article showing how Jonathan Klein and Getty images has a history of treating their contributors poorly and even having their contributors file a class action lawsuit alleging that Getty ignored their agreement and offered rights managed images for sale for as little as $2.08 with unmonitored usage. If you would like to read this article it may be found here:
http://www.extortionletterinfo.com/forum/getty-images-letter-forum/jonathan-klein-and-getty-images-know-how-to-treat-their-contributors-not/This article will deal with how Jonathan Klein and Getty images do not practice what they preach and is clearly a case of do as I say, not as I do. The majority of the people who come to ELI for help generally fall into a couple of categories, the first being where they are victims of a third party such as a web designer who placed the images on their website without obtaining a license, the next category and the one I wish to address first is the innocent infringer. This is someone who has found an image not through an image search such as Google and not taken from the Getty site itself but from another website or source where the image appears to be offered for free, believing the image to be free it was taken and used. These victims genuinely feel bad when they are told that their image was not free as they believed but part of the Getty collection. The innocent infringer will usually face an exercise in futility by trying to explain to Getty how their image was obtained and how it appeared to be free, so if there was any infringement it was innocent and a simple cease and desist should suffice. Of course Getty is all about the money and cares not one iota and demands payment.
Here’s where it gets interesting, let’s look at a couple of recent and I believe still ongoing cases, the first is Rock Photo which is suing Getty for knowingly and willfully infringing on his copyright by offering his images for sale. The owner of Rock Photo states that his images were stolen and the person who stole them sold them to Getty while at the same time Getty knew the images did not belong to the seller. Getty’s key arguments is that they did not believe they were infringing on anyone’s copyright as they thought they had purchased the images and if they were infringing the action was innocent and non-willful therefore they should not have to pay anything. Sound familiar? You may read the complaint in the case here:
http://www.scribd.com/doc/110658180/RockPhotos-Sues-Getty-for-InfringementNow here’s another case that could apply to letter recipients who are victims of third party infringement. This case involves a company called Car Freshener Corp, you know them but probably not by name as they make the little Christmas tree shaped air fresheners you hang from your car’s rearview mirror. They happen to notice that there were several pictures on Getty’s site which included their copyrighted and trademarked air fresheners. I guess Getty was uncooperative with them so they sued Getty for trademark infringement. Even after being sued Getty was still being difficult and not providing discovery information to the point that Car Freshener Corp had to complain to the court and file a motion. Getty once again played their confidentiality card and claimed it would violate the confidentiality between themselves and their artists to provide the information requested. I believe Getty’s main defense was that they were victims of the artists uploading photos containing images of the copyrighted and trademarked air fresheners so it should not be their fault but rather the people who uploaded the photos. While I tend to agree with this statement I find it interesting that when a letter recipient says they know absolutely nothing about the Internet and paid a web designer to do their site and they are the ones that placed any images on their webpages, Getty’s response is always it doesn’t matter, it’s your site now pay us. Getty did end up having to pay a substantial fee for each image that they were selling that contains the trademarked image. You may read the decision and the threads pertaining to this on the forum here:
http://www.scribd.com/doc/67629206/Decision-Tree-Freshner-Gettyhttp://www.extortionletterinfo.com/forum/getty-images-letter-forum/getty-images-and-scented-trees-update/Here’s one that I really like, on Getty’s site they offer many images which are public domain. While I understand and agree that they should charge a “reasonable” fee to license these images from their site since the work was done to bring many images of the same subject together saving time and research on the part of the customer this does not mean Getty can pursue anyone for infringement on a public domain image. First because it is a public domain image and second Getty has no way of knowing where the letter recipient obtained the image. Here are a couple of cases in which Getty has tried to collect from people over public domain images. The first was a gentleman by the name of Dan Evans who came to our forum after receiving a letter from Getty over an image taken back in 1856 of Henry David Thoreau and was taken from the Wikipedia page on Mr. Thoreau, it was even labeled public domain there. Getty was demanding $780 from Mr. Evans for using a public domain image that Getty also happen to offer on their site claiming infringement. Mr. Evans sent them a letter telling them this was a public domain image and to basically pound sand, wisely Getty replied back that they had closed the case. This makes me wonder how many other people Getty has done this to and have frightened into paying hundreds of dollars for a free image.
http://www.extortionletterinfo.com/forum/getty-images-letter-forum/don't-pay-getty-thank-you-eli/The next case like this was gleaned from Roberts excellent work in obtaining all of the Attorney General Complaints filed with the Washington State Attorney General’s office against Getty. There are a few very interesting complaints in these files. The first is a case where Getty sent a letter demanding payment to a gentleman named Jim Conachen for another public domain image; the image was of an F-16 fighter taken by another military plane and released by the government which makes it a public domain image. This image was used in a web template offered for sale from Intuit.com. After the usual Getty runaround Mr. Conachen filed a complaint with the Attorney General’s office as well as informed Intuit of what was going on. While Getty for all intents and purposes ignored complaints from the Attorney General’s office as they cannot force Getty to do anything however, as I have stated in the past it is my opinion that Getty does not go after large companies the same way they go after individuals, small businesses and mom-and-pop companies since large companies have the resources to defend themselves. Intuit replied back to Mr. Conachen complaint and told him don’t worry about it we will handle it, then lo and behold Getty sends a letter to the Attorney General’s office saying in regards to Mr. Conachen complaint we are pleased to inform you that we have dropped our claim and consider the matter closed. It is amazingly how quickly Getty backs down when there is a large company with legal resources behind them telling them to back off. Here’s the complaint in the Eli document library if you wish to view it:
http://www.scribd.com/doc/104557917/Getty-Images-Attorney-General-Complaint-19Now a perfect example of Getty’s talking out of both sides of their mouth can be found here, this is a PDF pamphlet made available on Getty’s website called “Copyright 101”, in this pamphlet Getty poses questions and answers them such as “I am a blogger, am I allowed to use the image in my blog for free?” and “I am a volunteer or nonprofit company can we use the image for free?”. In both cases the answer is an emphatic no, yet in a recent video CEO Jonathan Klein seems to say sure take our images, play around with them and feel free to use them up and to the point where you start making money on them which apparently contradicts their own pamphlet. The video may be found here and Mr. Klein’s statement starts right around one minute into the video:
Finally for the last example of do as I say and not as I do, Getty always tells the letter recipient the burden to find out the copyright status of an images falls on the consumer which is true, but who in their right minds after getting an image that all around it says
FREE-FREE-FREE, who would think now I need to try and find the owner of this image and see if it was licensed to this website. Here is pamphlet available on the Getty site called “Be Sure of It” where they talk about making sure you have rights to the image you want to use. If you go to page 5 called “Image Guarantee” it appears that Getty is trying to sell you image insurance to protect you from their own images!?! Their pitch is:
“
Not every image comes with a model or property release.
Sometimes, with certain non-released imagery or
footage, it’s simply not possible to find or identify a rights
holder, if one even exists. So clearance just isn’t an option.”
It appears at least to me that Getty is saying were not even sure of the copyright status or even who the copyright holders are on all their images so rather than Getty following their own instructions they say will sell you insurance to protect you from the images we sell you. You may read this pamphlet here:
http://www.gettyimages.com/CMS/Pages/RightsClearance/StaticContent/RnC.en-us.pdfThis also seems to be backed up by a statement made by Getty Copyright Compliance Specialist Nancy Monson when replied with the following statement to a letter recipient:
“
Copyright exists the moment a photograph is created and copyright registration is not a requirement of copyright ownership. Getty Images does not own the image. Getty Images has contracts with its contributing photographers who are the copyright holders and owners of the images. The contributor agreement contains representations and warranties that the contributor is the sole copyright owner. Consequently, Getty Images does not require contributors to provide Getty Images with certificates of registration and leaves the option of copyright registration to the individual photographer. Due to confidentiality concerns, Getty Images does not provide copies of our contributor contracts or copyright registration at this time.”
While the first part of Ms. Monson statement is 100% correct in that copyright exists as soon as you take the picture, I love how Getty in their demand letters wants “Damages” that their artist have suffered when they admit here that they have no idea whether or not an images has been registered or registered properly allowing them to ask for and collect damages, albeit in my opinion the damages that they ask for exist only in their mind. If Jonathan Klein currently owns or ever buys a yacht he should name it Damages so their demand letters would at least be accurate when they say you must pay for damages, I bet he really misses those stock options too. The article with Ms. Monson’s quote may be found here:
http://www.extortionletterinfo.com/forum/getty-images-letter-forum/an-interesting-message-from-a-getty-'copyright-compliance-specialist-'/So in conclusion we can see Getty images doesn’t practice what they preach and likes to act a lot like congress by holding themselves to a completely different standard than they do everyone else. In the next article we will look at some of the legal cases Getty has been involved in.
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