There was an article in the LA Times yesterday on “Controlling Illegal use of Copyrighted Material on the Web“.  The article is basically about the penalty cost that Getty Images will fine someone if they discover that someone using unlicensed copyrighted Getty material on their website.  It doesn’t really contain any new information – Getty has been doing this for 3-4 years now.

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Basically, Getty uses an online service called PicScout to scan the web for images that match the content in its vaults.  When it finds a match, somehow, it compares the site owner/registrar to it’s history of licenses sold for that content.  If it doesn’t find the image was legally licensed, it sends its legal dogs out to fine the owner and get the work removed.

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Too Much?

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The question the article brings up is “Are the fines too excessive for the crime?”.   The point of a fine or punishment is not only to dissuade the person receiving it from committing the act again, but to also scare off others from doing the same, out of fear they will be caught as well.  I think you can see this in the RIAA lawsuits that occurred over music sharing.  The general outcome that I see is that normal people who might have thought music sharing was ok, got really freaked out about being fined hundreds of thousands of dollars and turned to legal sources, like iTunes, which is selling 25% of the music in the USA.  Of course, there will always be people who will do their best to step around the rules, but your everyday, average Joe MusicGuy probably will turn to iTunes or some other legal source, for their music needs.  I know I do.

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Now, it certainly wouldn’t have made sense just to fine illegal music users the cost of the song on iTunes.  You might as well just continue to keep downloading on the off chance that someday, you might have to pony up a few cents for the downloads you did.  The cost of the risk taken (morality aside) would seem to justify continued downloading.  ie., low risk and a low cost if caught = keep on doing it.  However, through the media reports, we saw that a large number of people were actually tracked down, and the fines were very high: high risk + high cost = STOP NOW!

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How Much?

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Looking at that scenario, for one thing, it wouldn’t make sense for Getty to just fine people the actual cost of the license.   It would be like catching a shoplifter.  “We caught you, but just pay for the item and we’ll let you go.”  The person would just try again next time.   There needs to be a punishment factor.   The second thing coming into play is that there is a real cost to protecting the rights of the Getty submitters.  PicScout certainly isn’t free:

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If you’re goal is to monetize the images found (either by licensing or unauthorized use claims), we charge based on a percentage of the recovered revenues.

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So, Getty has some negotiated cost with PicScout they need to meet to use the service.  Then, you have Getty’s law team that goes into action once the infringement is found.  We all know lawyers aren’t cheap.  So, there is a per image cost to pursuing an infringement claim.  We just don’t know how much it is.  There is the notion in the article that it is based on the licensing cost of the image for the found use:

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“When we’re made aware of an infringement, we seek an amount that’s in line with the cost of licensing the image,” said Claire Keeley, senior corporate counsel for Corbis. In many cases, she said, that can mean damages of as much as 10 times the original licensing cost. In other words, a photo that costs $50 to license could result in damages of $500 if the copyright is violated.

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Assuming Getty has the same thought process, the problem here (for Getty, not for the user), is that Getty prices for web usage/size, at least, have dropped noticeably in the past few years, to the point now, where a blog sized image can be licensed for $5.  Obviously, a multiple of $5 fine is not going to pay any of the overhead bills for the action, so there must be some minimum to cover costs, as well as to scare off future offenders.   Despite the image fees dropping, the fines seem to have stayed stable at $1000 or so per infraction since the start of the program.  So, it would seem that around a thousand dollars is the place Getty wants to be.  They must walk the line between recovering costs for protecting their artists, dissuading others from infracting and not annoying people so much that they lose too much market share from people vowing to stay away from Getty Images for all eternity.

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Whose Fault?

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The article brings up the question of where the fault lies for these infringing uses.  Does it fall to the web designer who procured the imagery/content, or to the end buyer of the site design, who commissioned and approved of the site?  I would say that this depends, of course, on the contract between the two, and things like indemnification clauses and work for hire and such.  What I think that we can take out of this, though is that the choice of a designer goes back, again, to a cost/risk analysis.  Do you hire the college student or neighbor with no references or knowledge of copyright for a low price, or do you pay more for someone or a company with a history of web design knowledge and experience?

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From a survey conducted last year:

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A recent study of more than 1,000 people conducted by KRC Research and iStockphoto, the world’s royalty-free multimedia sales leader, revealed that 33 percent of Americans are using downloaded digital content, but nearly 30 percent are unaware that permission may be required for its use. This lack of awareness spikes to 38 percent among Americans in both the 18-24 and 65 and older age groups.

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This is not to say that these more expensive companies are immune from mistakes, but when finishing a project, hopefully a buyer has negotiated or included the right to take a look at the designer’s receipts for image/content licensing to best insure legality.

End Thoughts

Of course, at this point, I’m going to say that those commissioning designers should insist on those designers using a reputable image/content site as their purchase source, and should also require receipts or other proof for said licensing.  Avoiding free sites, or public domain image sources, where there is no oversight to the content available, is just common sense.  There are loads of people, mostly in Asia/Eastern Europe, who delight in procuring large numbers of stock images from various sites and putting them up for free downloads.  Some sites, such as Flickr, may even strip internal image information, making it difficult to determine image source, even if the image is offered with a proper license.   These free sources of content may be extremely attractive to designers looking to cut costs, but they may not be the best solution to the person commissioning the designer.  You must be vigilant in checking the source of the content you are responsible for.

Toward that end, I will, of course :), suggest using iStockphoto.com as a source for content.  Regular buyers are able to view and screenshot a list of licensed content.  A record of a purchase, even for a prior project of the designer, ensures proper licensing, since, with iStock’s Royalty Free licensing, the designer can use the content in perpetuity (forever).  Even better, a corporate account user can:

Get full reporting on financial activity within your network. Keep track of who downloads what for each project. Stay organized with customizable reporting tools that output to a CSV file.

By the way, here’s a good iStock article on incorrect content usage: http://www.istockphoto.com/article_view.php?ID=616 .

Here’s to staying out of trouble!

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One Response to Keep an Eye on your Content Sources

  1. […] this announcement come of the heels of my blog posting yesterday “Keep an Eye on your Content Sources“.  Now, you can feel perfectly safe, and legally covered (up to $10,000) when sourcing […]

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