Messages

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Getty Images Letter Forum / Re: Fair Use Question

« on: September 21, 2014, 03:27:57 PM »

I agree that it makes sense for a licensing company to restrict a typical license so that an image can't be used in a template for sale.

I also agree that it would be harder to imagine a fair-use exception for a template. But one could be possible, I suppose. Maybe if a doctored logo of a company was built into a template of a site that criticized that company's labor practices, environmental record, or whatever.

But my point remains. The fair-use exception isn't nullified just because the copyrighted image appears in the website's "design elements."

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Getty Images Letter Forum / Re: Fair Use Question

« on: September 20, 2014, 10:18:20 PM »

I had the chance to do a little research into this "design element of a website" phrase. I couldn't find any legal definition.

That being said, this phrase comes up in boilerplate legalese for image licensing companies. Google shows that this phrase appears in many, many companies' licensing terms, and I'd assume it could be in Getty's as well. Here's the relevant excerpt:

A. User's Rights to Materials from [company]. You agree to access, acquire, and use our Materials as follows:

[...]

3. You may access, acquire, and use the materials downloaded from [company] subject to these Terms and Conditions in the following manner:

[...]

f. As part of a design element of a website, video, film, television broadcast, CD-Rom cover, or video game. However, you may not, under any circumstances use the materials from our website in a Website template or any template or design sold individually or as part of an archive or catalog collection, or an automated shopping system, under any circumstances. You MAY however use our photos in client websites that are NOT distributed through an archive or automatic system.

So this script seems to use the "design element" phrase to distinguish from website templates. I'd guess the standard license for an image allows one to use the image in "the design element of the website" (although it's still unclear what that is exactly) and not the template. I'd also assume that companies have a different license, perhaps at a higher fee, if one wanted to use an image in a website template.

Nevertheless, this phrase has nothing do with fair use, it seems. The fair use exception should remain intact (as long the manner in which the image is used indeed meets the criteria of fair use) no matter if the image appears in the website's design elements, its template, or wherever else.

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Getty Images Letter Forum / Re: Fair Use Question

« on: September 20, 2014, 01:46:45 PM »

The "design element of a website" argument seems absurd. It's just a convoluted way of saying that the image is on the website to begin wth. By necessity, any image that's on a website at all becomes part of the "design element of [the] website."

Would there be a way to put an image on a website (fair use, proprietary, or whatever) without it becoming part of the website's "design element?" No.

Likewise, if you were writing a book, would it be possible to include a copyrighted passage from another book for analysis without it becoming part of the text of your book? No.

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Getty Images Letter Forum / Re: Fair Use Question

« on: September 18, 2014, 11:26:52 PM »

It's the original poster here. I've decided to fully reject Getty's offer. Here's the link to the blog post in which I used the image in case anyone is interested.

http://www.capandwing.com/blog/manufactured-urgency

I'll most likely post my response to Getty soon.

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Getty Images Letter Forum / Re: Fair Use Question

« on: September 15, 2014, 06:03:52 PM »

Thanks for the legalese and the support. So I still have some questions:

• How should I respond? I believe that I should send them the text that Joel Rothman sent me and reiterate my position that I'm not paying them and not taking the image down. Do you agree this the best course of action?
• How should I expect Getty to react?
• What should I do about their stipulation that things should remain confidential? I suppose it doesn't matter because I'm not agreeing to their terms, but do I need to be careful with this aspect of dealing with them?

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Getty Images Letter Forum / Re: Fair Use Question

« on: September 13, 2014, 05:18:11 PM »

I'd be glad to share the link, but the Getty letter also says the "terms of this settlement offer shall be kept confidential..." so I'll hold off for the time being. I'll PM Attorney Rothman for his opinion. If it seems advisable, I'll go ahead and post it.

In the meantime, what can Getty do if I refuse to pay and have a strong legal argument behind me? How can they sue me and have a judge arbitrate when we're not even in the same state?

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Getty Images Letter Forum / Fair Use Question

« on: September 13, 2014, 12:49:24 PM »

Hi all,

I got an extortion e-mail from Getty recently. I did indeed use the image in question, but I did so intentionally, believing it should qualify as fair use.

I'm a freelance writer and marketing consultant. On my company's blog, I often use examples of writing or marketing found in real life, and I critique these examples to explain whether they are effective, well-written, etc. The post which used the image is about the trend of "clickbait" and "listicles" online. I used the image (and other images) to illustrate my point. For the Getty-owned image, I even say that I found it on the Huffington Post, a popular website.

I wrote to Getty, "Because I use this image in the context of criticism and commentary, its use qualifies as "fair use." When a party's use of copyrighted material qualifies as a fair use, it is not considered an illegal infringement. Therefore, I will not be taking the image down, and I will not be sending you any money."

Getty came back saying they maintain the use is promotional in nature as it's "part of the design element of a website." But they reduced their demands from $800+ to $200. For me to pay this $200 fee, however, I have to do it within a week. Otherwise, they're rescinding the offer.

I don't intend to pay them anything. I used their image as a way to make my point, so I maintain it's fair use. Also, this one-week time frame is an intimidating tactic that I don't want to play into. What's my next move?