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.