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Has Getty Come Looking For You? - PPA Today

Has Getty Come Looking For You?

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We've received word from some PPA photographers that Getty Images has been sending out some unsolicited emails with YOUR images in them as a way to catch your attention and get you to become a contributing member for their libraries of stock images. Slightly unethical! (We'll explain...) 

We're not here to give you advice on whether or not to contribute to iStock, but rather to address another question: Are Getty Images/iStock infringing on your copyrights by sending you an email with your images which they did not ask your permission to use? 

The simple answer is technically, yes; however it's probably not enough to warrant any legal action. (Note: We did NOT say definitely.) The reason why is where things get interesting, because it seems that Getty/iStock have found a bit of a loophole in the law. We brought in PPA Copyright attorney, Stephen P. Morris to help explain.
"iStock gets points for some extremely creative marketing," said Morris. "Although I suppose they do risk some backlash here because there is certainly a technical violation of the law in the sense that there has been an unauthorized reproduction and distribution of your copyrighted work. However, since iStock's copying and distribution of your work is limited exclusively to you (the copyright owner) it is likely permissible under the 'de minimis' doctrine.

"De minimis is a legal concept that says that some technical violations of a right (copyright in our instance) are so minimal that no legal consequences will be imposed. If iStock/Getty were copying your work and distributing it to others, or making use of it in any way that might harm your ability to derive income from your work - then it would be outside this 'de minimis' exception and would turn into an actionable copyright infringement."
 
Morris went on to further explain the 'de minimus' doctrine.
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"The term 'de minimis' is short for the legal maxim 'de minimis non curat lex' which is Latin for (roughly translated) 'the law does not concern itself with trifles'. This term is properly used in two different ways in our copyright context - only one of which would seem to apply here. An excellent discussion of this 'de minimis' doctrine in the copyright context appears in Ringgold v. Black Entertainment TV, 126 F. 3d 70 (2d Cir., N.Y. 1997).

In some cases 'de minimis' can mean that there has indeed been copying but that it is so trivial that there can be no 'substantial similarity' between the original and the resulting work. A good example is a case in which a still image appears briefly and out of focus in the background of a movie set.

Used more broadly, 'de minimis' is applied to a technical violation of a right so trivial that the law will not impose legal consequences. The classic example is a cartoon being copied and posted on one's refrigerator. 

It is quite possible that Getty/iStock's decision to use images from a photographer's own website to market services to that photographer might fall into this second 'de minimis' category. While there is no question that unauthorized copying has taken place, it could be argued that the copying is insubstantial as the images are only being 'published' to the photographer/copyright owner and that the economic interests of the photographer do not appear to have been harmed.

While there is some question about whether this type of limited copying and republishing only to the copyright owner constitutes an actionable copyright infringement, the broader question is whether the photography community will be accepting of a Getty/iStock marketing pitch that relies so heavily on making unauthorized copies of their work."

For that answer, we asked one of our tipsters, Luke Edmonson (make sure you catch him at Imaging USA!), for his thoughts on the situation.

"The email appeared out of the blue, with no prior contact," said Luke. "In theory, all they are doing in the email is inviting you to join something that has the potential to bring profit for both parties. They weren't selling a product per se using the images.

"What's interesting is they included images from our wedding website in the email. And while it didn't violate the letter of the law, I'm not a fan of the approach. It would be one thing to email me and discuss images we've take or even to have a one-on-one conversation and during the discourse they perhaps send me a screenshot of an image if I can't remember which one they are referring to. But to put your images into an e-mail marketing campaign and market directly to you, the maker, soured me on their approach and presentation. I chose not do business with them and don't anticipate that changing any time soon."

So what about you? Has Getty sent you the same type of email? How do you feel about it? Chat about it with your fellow PPA photographers on theLoop! PPA's got your back.


About this Entry

This page contains a single entry by Professional Photographers of America (PPA) published on October 6, 2014 2:37 PM.

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