Betsy Reid caught me at a good time. I had just wrapped up phase 1 of my 19 hours in Atlanta at the PhotoShelter Town Hall, and as I was running out the door to present at the ASMP meeting, she thrust in my hand the SAA white paper, titled “Infringements of Stock Images and Lost Revenues.” I filed it away for a later read. Couple that with an hour-delayed departure from ATL at 6:20 am the next morning, and I skipped reading the Marriot-provided USA Today, instead, picking up her report for a good read.
Reid is the Executive Director of SAA, or the Stock Artists Alliance. But, it’s clear to me that she’s the Princess Leia of the Rebel Alliance’s fight for all that is good in the realm that is within the Alliance’s purview.
The paper revisits some of the astonishing results of their study with PicScout, as to just how bad the issue of infringement is on the internet. SAA’s study found that 9 out of 10 images they found were infringements upon RM images. That’s a lot of infringements! What’s worse, because of the low-dollar-per-image issue, it seems that tracking infringements of RF isn’t cost effective, giving infringers essentially a “license” to infringe.
One of the major points of misuse was found in templates. Essentially, when you put together a website template - a product you then intend to turnaround and sell as a finished package. The devil is, of course in the specific details of the license, but if you’re licensing an image for your product, and then you turn around and sell that finished product – a template, you’re not specifically re-selling the image, because it’s an integral part of the template, so a careful reading of the license (which I’d doubt the template creators did) is necessary. Clearly, Corbis’ pursuit of TemplateMonster is giving legal direction to how the courts perceive templates, so that will serve as a precedent for others to follow, and for future infringers to be wary of.
SAA’s paper (conservatively) extrapolates the results of their study, methodically concluding that:
“we applied the infringement rate observed from the study to the rest of Getty Images’ current RM collections. According to Selling Stock’s recent count, there are just over 1 million RM images on gettyimages.com. If we apply the 1:15 annual infringement rate observed in our study, we arrive at an estimate of approximately 67,000 infringements in a one –year period. Using an average license fee of $600 ( a conservative figure, based upon Getty’s published rates for commercial web uses), we calculate that these usages represent a market value of $42 million per year.”Not anymore. Getty’s slashing of all web uses to $49 makes that a $3.3 million dollar market value, and whatever infringement claims Getty will be bringing to bear on infringers will be finding settlements based upon those lower figures, and certainly judges (and juries) will be looking at current pricing to award damages. These losses don’t even take into consideration RF. IF you’re producing RF, those infringements almost certainly won’t be pursued by those supposedly looking out for your interests, so you’ll be happier pissing into the wind.
With $42 million, or $3.3 million, plus punitive damages for 67,000 images in a year, Getty could hire an army of attorneys nationwide and flood the federal courts with infringement suits, and probably pay for the entire endeavor and then some, with the awards they will garner from these thieves. Further, after about 6 months worth of cases flowing through the courts, people will begin to get the idea that Getty is serious about stealing, and will settle. Again, it will surely be a zero-net cost to make these pursuits real by filing, and further, with all the damage that Getty has done to the industry, this could be the one thing they could do to right some of their past wrongs. If Getty were to adopt, in the short term, a zero-tolerance for infringers (in other words, if you infringe, you get sued, rather than trying to turn infringements into retro-active legitimate licenses, as they are trying to do in many cases now), they would reap long-term benefits. Further, others would be less likely to steal because they were taught a lesson by Getty’s lawyers. I suppose this would be a side benefit of having the same interests as the school-yard bully.
Perhaps our Princess Leia can turn the Empire against these dark forces. Heck, what would Star Wars have been like if Luke, Leia, Hans and Darth Vader all been on the same aside against a threat posed against them all? And maybe these issues were what Conde Nast was prophetic in worrying about when they demanded all rights “throughout the universe” to the images you produce for them?
Then again, maybe not. In the end though, we should be gratful of the SAA for this study, and continue to support them and their endeavors.
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