Well, Happy 2013. The new year brings with it a situation that has iStockphoto contributors concerned, and actually this affects not just us, but stock contributors across the spectrum, including “traditional” shooters.
Many years ago (2007) iStockphoto had created a “promotional” program with Microsoft to supply the office.com website with a number of stock images for download and use by its users. Contributors received an “extended license” payment for this use, and the Microsoft license limited users to personal use. As well, the size of the image was to be limited. This recently came back into the light, as it does every year or so, when an iStockphoto contributor discovered the program was still ongoing, and that it seems to have morphed into an uncompensated, untracked, perpetual, commercial usage “license”, under the guise of “promotional” use, even though the only promotion is a general link to iStockphoto on the image download page.
iStockphoto officially responded here, saying essentially, “Everything is fine, no worries.”.
Under the Agreement, Microsoft agreed to make the content available under the terms of a license, which they are. As sjlocke pointed out the license is at http://windows.microsoft.com/en-US/windows-live/microsoft-services-agreement – section 8.1 is the relevant section. The link for this page is called ‘legal’ and can be found at the footer of every office.com page. Under the terms of this license, end users are prohibited from, among other things, distributing copies of the content outside of their projects and documents created with Office.com.
So, we have an established history of works being licensed without compensation to the contributor, and to boot, the image meta-data has been stripped. This image, for example has no EXIF data relating to the creator and indeed is tagged as “Public Domain” in Photoshop.
When this discussion was going on, I was notified by another contributor that recently, Google had added several thousand “stock images” to its Google applications programs, for use by the apps’ users.
The Current Situation
I took a few moments to look into this. I have never used Google Apps, so I logged into my Google account and found my way to https://drive.google.com . From here, I created a new document and used the insert functionality to bring up a search window for images. I then chose “Stock Images”, typed in a phrase, “student”, and to my surprise, my own Vetta collection image was the first image returned.
I selected my image, inserted it into my document, and discovered that I could easily right click to save this image locally to my computer, and upon checking it in both Firefox and Photoshop, found that my copyright information was not available. The image was also available at a size of 1066×1600. This size is easily large enough to print a 5×8″ image at 200 dpi. Looking around the image insert functionality, trying to find some restriction on this program, all I could find was the note under the search bar:
“Results shown are labeled for commercial reuse with modification”. There are no restrictions listed for usage and “with modification” says to me that the image can be downloaded and modified locally, and used as needed. The “Learn More” link leads to this page, which only says:
When using the Google Image Search feature in Google Docs, your results will be filtered to include images labeled with a license that allows you to copy the image for commercial purposes and modify it in ways specified in the license. Only select images that you have confirmed you can use legally in your intended context, including with appropriate attribution if necessary.
So, this says to me, essentially, that the images shown are free for me to use, download, and modify however I like, per the “labeled license”, which is non-existant.
Incensed that my work was being offered for free, without attribution or restriction, I created this post on iStockphoto that something must be wrong here. During the course of the discussion, while waiting for an official response, we discovered that these images of ours (there were many others from my peer contributors) were all part of the Vetta and Agency collections, which are ported from iStockphoto up to Getty Images (the iStockphoto parent company). They had been licensed by Getty Images under the “Premium Access” program for an unknown amount, netting the contributor either $6 or $12, and apparently iStockphoto was unawares of the program, or hadn’t been ready for us to find out about it.
As with the Microsoft deal, when the response eventually came, it wasn’t good news.
Google licensed these images for use by Google users through the Google Drive platform; Users of this platform are granted rights to place this imagery in content created using Google Docs, Google Sites, and Google Presentations, which end uses can be for commercial purposes.
Users are not granted rights to use this imagery outside the context of Google Drive created content.
No rights are granted to Google users to redistribute image files outside of the context in which they’re used.
Google’s license rights are not the same as the standard RF license rights. We have specifically given them the right to enable that content to be used by their end users within the confines of the Google programs. They have a bespoke EULA.
There have been copyright concerns raised specifically around the right click functionality and lack of embedded metadata within the Google platform, although not ideal from some perspectives this is fairly standard practice for this type of product placement. Lack of attribution has also been mentioned, but this being a license deal rather than a promotional arrangement attribution is not typical or required.
Needless to say, this outraged iStockphoto contributors even more, as there do not appear to be “granted rights” anywhere, and the concerns about copyright information are brushed off as being “standard practice”. As well, in the following discussions, contributors pointed out that a buy-out of an image, as this seems pretty close to being, should run in the thousands of dollars per image, not an insulting $60, netting the contributor $12.
Contributors have many concerns about this Getty licensing scheme, and paramount to those, is that we are not given access to the license agreement that Getty has made with Google.
- The license payment is ridiculously small for this kind of usage, free commercial usage for the 20 million users of Google Apps.
- Meta-data on the images has been removed on the images inserted by the Apps, or is not viewable by Photoshop nor Firefox.
- There is no licensing restriction to the end user on Google that is clear or accessible.
- Images can be easily hot-linked from outside the Google site.
- Images can be easily saved locally.
- The permissions licensed to Google appear, or have not been said to not be, perpetual.
- With these image available for full commercial use for free, why pay for a license?
iStockphoto Exclusive concerns also include:
- An agreement with iStockphoto says the company is to be the “exclusive distributor to sell, license or sublicense Exclusive Content to third parties worldwide ” – this scheme has Google also distributing Exclusive content.
- The intent of the relationship between iStockphoto and the contributor is to license works to end-users and for that license, collect fees. This scheme is outside that implied agreement.
- Exclusivity, in the past, has assisted in tracking down license violations. With a new “distributor” it will be not be feasible to determine which “license” a perceived violation is operating under or where the source of content is from.
- Licensing under the iStockphoto terms is very clear when it comes to model released images. The Google site provides no such terms or protection.
- If Getty Images can broker this kind of deal, what is to stop them from hypothetically, setting up a company, licensing our work to them for $1 in the same way, and selling it for $10 there, keeping all the royalties for themselves?
Due to all the unresolved issues with this scheme, I would not advise using any of the content on Google Apps, for your own protection. Without a strong licensing agreement, you may use the content in unacceptable ways that could get you in legal issues down the road.
How To Resolve This
Contributors in the majority, see this type of deal as a clear negative, and, without any further information or knowledge of plans, contributing to the downward push on compensation paid to us. Some steps offered by contributors, that would help in this situation are:
- Google to acknowledge their mistake in negotiating and accepting this licensing scheme, and to remove the content in question
- Getty Images to acknowledge the abuse of their agreement with their valued contributors, and ask Google to cancel the program, while returning the “license” fee
- Images removed in whole from the program, or per photographer as requested
- Payments of a sum, per image, to the contributors for the untracked and unlicensed distribution of their content that has already occurred
- More blatant and obvious statements of licensing, clearly available with the content, and better software control of the content
- Content restricted to personal usage, not commercial
- A requirement that any such programs are opt-in in the future, as currently, contributors are given no option at all
I would point out that Getty Images, as a member of the Picture Archive Council of America, has a clear Code of Ethics that they can follow:
The Picture Archive Council of America, through its worldwide membership, vigorously supports a standard of business practice that sustains the highest degree of honesty, integrity and fair play with clients, contributing artists, other stock agencies and vendors. PACA has a commitment to the protection of intellectual property and represents the highest quality of images, service and membership support.
It is hard to work something like this out with a company like Getty Images, as already it is clear that they perceive themselves to be in the legal right, which may or may not be true, but certainly isn’t in the spirit of “fair play” as mentioned above. Contributors are responding, individually and as a group in several ways:
- They have suspended uploading of content to iStockphoto
- Content is being moved from the collections that are ported to Getty Images back to the main collection at iStockphoto
- Content is planned to be deactivated, en masse, on February 2nd: http://www.microstockgroup.com/istockphoto-com/d-day-%28deactivation-day%29-on-istock-feb-2/msg292024
- Contributors are dropping exclusivity, although this will put their content into the Partner Program (Thinkstock), which still has it at risk
- Contributors are quitting iStockphoto completely, switching to other distributors that have no such distribution schemes, like GL StockImages .
- Legal action is being considered by individuals and groups, relating to copyright and contract issues.
There are many articles that are popping up online dealing with this situation. Here are a few:
- Getty Images signs controversial content deal with Google Drive
- Creatives Stunning Revolt Against Bad Business
- Judge rules on infringement, while Getty hands over images to Google
- Google Drive(s) Photographers Bonkers over Getty Deal Gone Bad
- Getty & Google Struck a Deal, People are Not Happy
- Google and Getty Work Deal that Costs Photographers
- Open Rebellion At iStockphoto
Honestly, I hate for this kind of thing to be taking away my time. I have better things to be working on, like creating new stock content. However, I don’t feel that this is the kind of thing we need to approve by being silent. And it wouldn’t come up if the contributors were just treated with respect and a sense of partnership. When creating a scheme like this, the involved parties should put themselves the shoes of a contributor and ask “Would I really be happy with this?”