Business Copyright Online Piracy

Getty Images Sued for Its Deceptive Practices

Getty Images Demand Letter

The ubiquity of digital cameras has had a dramatic effect on professional photographer fees, yet stock companies like Getty Images have benefited greatly from the new paradigm, helped in part by a Draconian lawsuit strategy that some have categorized as nothing short of extortion. However, with Getty Images sending out so many copyright infringement demand letters, the company was bound to extort the wrong target, which in this case is the Florida law firm, Schneider Rothman Intellectual Property Law (SRIPLAW).

The Getty Images Demand

Getty threatened Schneider Rothman with a lawsuit over alleged use of a thumbnail image on the sriplaw.com website.

According to the complaint, however, the alleged infringing photo is not hosted by Schneider Rothman, but placed on their site as a hyperlink from a syndication network operated by Zemanta, Ltd, one of several companies that provide content and link suggestions for web content creators. Before an author posts an article to a website, Zemanta can analyze the articles content and suggest related articles readers may also find interesting. Links to the related content along with thumbnail images are placed below the main article. In this case, Schneider Rothman posted an article on “texting while driving.” Zemanta provided several suggestions resulting in the articles and thumbnails as seen in the screenshot from sriplaw.com above.

The highlighted thumbnail is not hosted on sriplaw.com but is dynamically generated and pulled from its referring article via the Zemanta network. This type of linking uses Really Simple Syndication (RSS) technology, very common throughout the Internet. Companies like Zemanta make it easy to provide blogs and websites with related content not only as a means of enhancing the value of the article for its readers, but also to boost an article’s ranking on search engines, otherwise known as search engines optimization (SEO).

A review of the html code behind the photo shows that the thumbnail does not reside on Schneider Rothman controlled servers. Instead, the thumbnail is served from Zemanta.com while the full image is located at its article source; a fact that should have stopped Getty Images from sending Schneider Rothman a demand letter.

Thumbnails Are Not An Infringement

Additionally, the Courts have deemed thumbnail images as non-infringing. As stated in the complaint: “the mere display of a thumbnail sized image on a website with a link back to the site with the full sized image does not violate any of Getty’s purported rights under the Copyright Act. See, e.g., Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007). Furthermore, the copying and storage of thumbnail sized images for display on a website with a link back to the site with the full sized image is a fair use pursuant to 17 U.S.C. § 107, and may entitle the site that displays the thumbnail sized image to a DMCA safe harbor defense pursuant to 17 U.S.C. § 512. Id.”

Schneider Rothman believes that Getty’s use of an automated process allows demand letters to be indiscriminately sent to individuals and businesses that lack the technical or legal knowledge and/or funds necessary to defend them from Getty’s false claims. Getty’s unfair and deceptive practices have damaged individuals and businesses that receive letters from Getty, falsely claiming copyright violations and demand settlement payments to resolve such false claims. In many cases, the cost of litigating the matter would be far greater than the price demanded. As a result, those individuals or companies targeted by Getty “have instead paid extortion money to Getty that Getty was not entitled to.”

Schneider Rothman has asked the court to issue a declaratory judgment stating that the company is not liable to Getty for  copyright infringement. They also request a preliminary and permanent injunction enjoining Getty from engaging in the unfair or deceptive trade practice of sending computer generated form letters threatening lawsuits and demanding compensation from individuals and companies that are not violating any copyright laws.

About the author

Steve Schlackman

As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art and law. Should you have any questions on Intellectual Property contact him at [email protected] His photography can be seen online at Fotofilosophy.com or on display at the Emmanuel Fremin Gallery in New York City.

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  • Disclosure. I received a similar letter for a hotlinked thumbnail back in November 2011.

    I’d like to comment a bit on this– discussing the practical issues.

    If not, what is to stop people from pushing the envelope and using large thumbnails that clearly show the image, even if still smaller than what one might clearly call a full-size image?

    First bear in mind that the entity making the decision about the size of these thumbnails is Zemanta. So if someone has violated Getty’s copyright by copying and displaying, it would be Zemanta who created the derivative images, hosts it and displays it to people. (It may appear to be displayed elsewhere by inline linking, but that’s actually not the case. Zemanta has the server that sends out the bits and causes the image to light up on the browser screen. If Zemanta’s server were down, the image would not appear on a person’s browser screen.)

    So one of the questions you should be asking is: Why didn’t Getty send this letter to Zemanta? But let’s leave that question you didn’t ask on the side while we focus on why Zemanta would probably not create bigger thumbnails.

    Given that Zemanta is making the thumbnails it’s better to ask why an entity like Zemanta would not ‘push the envelope’ make something just a little smaller than the full size image but which was still not teeny tiny. The reason is simple: Their model is to create an assortment of images that fit on the bottom of someone– call them A’s– blog or web page each of which might attract users to click and visit article that might interest them. In some sense, these images are ‘ads’ for other people’s blogs. Call these people ‘B’ through ‘F’. (There are generally 5 ads). Zemanta is an advertising company and they benefit if they can persuade A to run these ‘ads’ for other people’s blogs.

    For Zemanta’s method to work, blogger A needs to think running the Zemanta plugin is a benefit. Blogger A would never think the strip of 5 ads inserted by the plugin was a net “benefit” if they consisted of huge images that take over the screen. The reason Blogger A may be willing to run ads for other blogs– but they want their own content to occupy most of their web page. So: Zemanta ads have to be small for this reason.

    Second, for Zemanta’s ads to ‘work best’ it’s better to present and assortment of ads so interested readers pick what they like– and equally importantly might come back to blogger A’s blog after reading “Ds” post and then click another image to visit another blog. A So, Zemanta wants very small images.

    Finally, to the extent that Zemanta does store images and deliver them, they want their costs to be smaller rather than larger. Using smaller images can be speedier than larger.

    As for motive to go larger: There is none. Zemanta isn’t pickig these images because they think the images are swell. They make thumbnails of images hosted by bloggers B-F who want their web sites promoted. Note that in this case, the blogger who wanted his web site promoted had licensed the Getty image. It’s quite likely that site operator “Bs” motive in paying Getty for images is in part motivated by knowledge that services like Zemanta and and Google will create thumbnails to serve in various forms of “search”, and pretty thumbnails will translate into more site visitors for site “B”. In contrast, dull non-image thumbnails won’t generate traffic.

    So you see that Zemanta has absolutely no motive to “go larger” or “push the envelope” on this. Like Google, their model requires them to display honest to goodness thumbnails. Their reasons for preferring thumbnails to large images has little to do with the copyright. They would prefer thumbnails even if they were free to pick any size at all.

    Now, let me turn to why Getty doesn’t send Zemanta a letter of this sort. I’m going to speculate– and the issue isn’t going to have to do with law. It has to do with Getty’s business.

    Recall that in this situation, site operators “B”-“F” host images. Services like Zemanta and Google sometimes make thumbnails which they display. And this is key: site operator B usually wants Zemanta or Google to make thumbnails because site operator B wants the link on site operators A’s site to be “attractive” to bring B visits. If those services were not making images, site operator “B” would get no traffic from things like Zemanta links on A’s blog, and so might not bother to license a Getty image because that images wouldn’t result in more traffic. They could just run site “B” without images (which lower budget sites do.)

    That means that to Zemanta use is not “replacing” the use by people like operator “B” who buy images from Getty. If anything Zemanta’s creation of thumbnails is increasing “Bs” motivation to buy and display images form those who sell them- including Getty. (Also note: If Getty was concerned about these thumbnails, they could demand that those– like B– who license Getty images block Google or Zemanta from visiting their sites. I doubt Getty does this because if they did, B would not use Getty images. They’d find an image service who let’s them actually use the images the license.)

    Now, as I’ve said all this, you might think you know why Getty doesn’t send Zemanta these letters. My guess is that Getty doesn’t want Zemanta to stop making these thumbnails.

  • Is there any legal definition of what constitutes a thumbnail sized image for linking purposes? If not, what is to stop people from pushing the envelope and using large thumbnails that clearly show the image, even if still smaller than what one might clearly call a full-size image?

    • Its not and easy question to answer. A standard thumbnail you see at Amazon or on Google search would be likely a fair use. But fair use is a question that has no bright line. Courts weigh the four fair use factors in each situation, and for thumbnails, that analysis is done in light of the two big cases, Perfect 10 v Google and Perfect 10 v. Amazon. Reading summaries of those cases will give you a better idea. Through those cases, we know that Google and Amazon thumbnails are considered fair use. One of the important fair use factors has to do with whether the use of the image replaces the market for the original. Thumbnails are too small to be useful, but if they become large enough to pull revenue away from the copyright holder, then the use may not be a fair use, depending upon the other factors. No one factor is determinative. Getty actually sells very 180px x 180px images for quite a bit of money. In the Schneider Rothman case, Getty is asking for payment of almost $400 dollars for a thumbnail that SR didn’t even put up. The images are dynamic, served via the Zemanta plugin, which add related posts from other bloggers. Its very likely a fair use. Of course, the crux of the lawsuit is about the deceptive practices and methods of grabbing money for these things after the fact, for images that may be a fair use. They are asking for a declaratory judgement which would stop Getty from this type of practice. How far it will go depends on a lot of things so we’ll have to wait and see how it plays out. Getty is likely to say the image is not fair use since they actually sell images at that size. But is it proper to charge for a thumbnail image that is supposed to be fair use? Are people actually paying them for thumbnails images and is that ok? Are they taking advantage of people not versed in the law? If a thumbnail is a smaller lower res version of a full image, then what if a 180px image is being sold as a full size image? what size is its thumbnail? I am sure the answer to that is 180px is a thumbnail but who knows what the courts may say. My point is that these lines get blurred in the digital world so cases like this one are important to help us define question like what is a thumbnail.

      • Ignorance of the law should not be a valid excuse when internet infringement or infringement in general has been and continues to be such a hot topic of discussion. When a website is designed, use of copyrighted materials is certainly considered and thus the parties are aware the object of their “desire” (photo, etc) is a work of creation and not a “gift” to society and the “author” of the creative work should be allowed to choose to either license their work or not. This is the same as a business who states “No shoes, no shirt, no service”.

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