I’m sure you have heard the saying, “If you can’t beat them, join them.” That’s exactly the philosophy Getty Images has decided to take with 35 million of its photos.
Such images will now be available for free to online publishers, in part because Getty acknowledges that many of its images are already being copied anyway.
Getty is trying to establish “an alternative for people who otherwise would just copy and paste photos,” said Joshua Benton, director of the Nieman Journalism Lab at Harvard University.
However, there is a catch: Getty will only allow “noncommercial” users, such as bloggers and Twitter users, to use its images for free. Furthermore, the image will still retain a Getty photo credit which will be linked to Getty’s website. There, viewers of the image can license the photo if they choose.
While it may seem like Getty is admitting defeat, there does seem to be some business sense behind the decision. Getty still requires that using the company’s images for commercial use will still require a paid license. Therefore, news outlets and advertising agencies will be forced to pay for a license. Furthermore, the links on Getty’s free images will bring more customers to their website.
But while Getty will probably make a profit off of this decision, the photographers the company employs may not be as lucky. Photography journalist Daniela Bowker told BBC News that many of her fellow photographers were exceedingly unhappy about Getty’s decision to give some of their photographs away for free.
“For some of them, it might mean their images are never used commercially and they’ll never make a penny… They feel very strongly about that because photographers don’t work for free and they don’t work for exposure. They say: ‘Exposure won’t feed my children’. So a lot of people are very, very angry, and I sympathise with them.”
However, Bowker acknowledged that many of their images have already been used illegally anyway.
Prior to Getty’s decision, prospective users of an image would have to determine if an image was subject to copyright restrictions, or subject to the Fair Use Doctrine.
Copyright protects original works of authorship, which includes artistic works, such as a photograph. Copyright protects most images, as the right attaches as soon as the work is created and is automatic; it does not require the photographer to file any special paperwork. Once the photograph is protected by copyright, the owner has the right to do four things: 1) Reproduce the copyrighted work; 2) Display the copyrighted work publicly; 3) Prepare derivative works based on the copyrighted work; and 4) Distribute copies of the copyrighted work to the public by sale, rental or lending, and/or to display the image.
Fair use, on the other hand, allows for “limited and reasonable uses as long as the use does not interfere with owners’ rights or impede their right to do with the work as they wish.” The Copyright Act mandates that four factors be considered when determining if an image is available for fair use. These factors are: 1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 2) the nature of the copyrighted work; 3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4) the effect of the use upon the potential market for or value of the copyrighted work.
All four factors are used in determining fair use, but the first factor has been seen as most important to the courts. Furthermore, courts generally give a photographer control over the first time an image is made public.
While the distinction between copyright protected images and those available through the Fair Use Doctrine may be a difficult one, Getty Images has, in large part, lessened the need to conduct this analysis.
* Caitlin S. Hale is a second year law student at Wake Forest University School of Law. She holds a Bachelor of Arts in English, with a minor in Communication Studies, and received a certificate of technical and professional writing and communication from East Carolina University. Upon graduation, she intends to practice labor and employment law.