I have often advised my clients of the need to investigate whether or not a license is needed in order to use images on a website or in any printed material. If a license is needed, it can be an unanticipated additional expense. However, not obtaining a license when it is needed can result in an unanticipated lawsuit. For example, Getty Images, the owner of over 150 million images, including many of the most famous archival news photos, is very aggressive in pursuing non-licensed users of its images. Getty often demands payment for past use in order to avoid the filing of a lawsuit.
So, last week’s news was quite remarkable: Getty announced that it will make approximately 35 million images available for use, without a fee, to online non-commercial users such as bloggers and tweeters. Such bloggers and tweeters will now be authorized to embed such images on blogs and tweets, similar to how YouTube allows videos to be used. The only caveat is that there must appear a Getty Images photo credit and a link to Getty’s website where viewers of the image can then elect to obtain a license to use it. The images may then be used for “editorial purposes,” meaning that the images would be used in connection with reporting or commentary of events that are newsworthy or of public interest. They cannot be used for advertising purposes.
Why did Getty take this action? They claim that “this will provide people with a simple and legal way to utilize content that respects creators’ rights, including the opportunity to generate licensing revenue.” They believe that allowing free access and dissemination of their images will generate brand awareness of Getty Images and, potentially, advertising revenue from the linked-to advertisers.
I think that it probably had more to do with two factors: one, as a practical matter, Getty was spending too much time and money pursuing all of these infringers and not recovering enough to justify the investment. Second, many bloggers and others using the images as part of a commentary, news report, etc. had claimed that such uses were allowed under the Fair Use Doctrine (see my blawg posts of February 20, 2013 and November 21, 2013 for a broader discussion of the Copyright Act’s Fair Use Doctrine).
Getty is still insisting that all commercial users of its images pay licenses fees; this new policy only applies to non-commercial users. Further, when users click on the required links that have to accompany the images, they may be taken to advertisements that generate revenue for Getty. Of course, commercial use licensees will have much broader rights to use the images—they can use them on multiple platforms, may edit the images and maintain copies of them on their servers—all things that the free users may not do.
