A very stock photo . . .
A very stock photo . . .

Getty Images—the monolithic stock image company with rights to 80 million stock images and >50 thousand hours of stock video has been using a rather questionable tactic to maintain its revenue streams, despite the prevalence of unauthorised usage of its content. It’s a tactic virtually identical to that of a porn site with the same problem . . .

The problem is that on the open web, it is all too easy to use content illegally. Licensed images can be copy-pasted onto websites without paying and often without even knowing about image licensing. And videos can be pirated at the click of a button. This causes large losses in income for both Getty Images and the adult website Malibu Media.

So these websites both came up to the same solution to the problem—a model of extracting payment from people by using legal scare tactics that are so extreme and en masse that they have been called “extortion” by some.

The Getty Images And Malibu Media Copyright Infringement Letter

The Getty Images/Malibu Media model for extracting income from its licensed content is by sending a letter threatening a lawsuit unless a payment of hundreds or even thousands of dollars is paid. The company makes large sums from people who would rather pay the amount than risk a lengthy and even more costly litigation.

Malibu Media does the same. In fact as of 2014, it was the biggest filer of copyright lawsuits in the US (Source). And the threat of litigation is even more potent if the embarrassment of a porn-related matter is involved.

Are Getty Images And Malibu Media Really Going To Take You To Court? · Should You Be Worried?

While these letters threaten fines of hundreds or thousands in court, in actuality, the fine would be a lot cheaper. The law states:

“The question is not what the owner would have charged, but rather what is the fair market value.” Davis v. Gap, Inc., 246 F.3d 152 (2d Cir. N.Y. 2001).

So the fine for an unlawfully-used Getty Image would be equal to the price of the image on Getty. Getty images are usually a few hundred dollars and Malibu Media films we would expect to be about the same price as a regular film—like $30 max (I can’t look up the exact price of one right now because I’m at work).

And even if you are still worried about paying hundreds of dollars or having your porn predilections vocalised in a court room and transcribed forever, the thing to keep in mind above all about these letters is this:

It takes over $1000 usually and often much more to sue someone. And the odds aren’t certain. So for a company to want to sue you they need the following things:

  • Substantial evidence. The burden of proof is in your favour.
  • Substantial damages. You must have pirated enough images to make the lawsuit potentially profitable for them. The amount of unlicensed content you used must therefore well exceed $1000.

What To Do If You Receive A Getty Images Or Malibu Media Infringement Letter

Our opinion is that the following is the best course of action for you to avoid paying Getty or Malibu Media:

  • Remove your Getty images (from your pages and server) and notify them of the removal.
  • Find out the value of the content you infringed. If they content is well over $1000 in value, then we recommend that you pay Getty or Malibu Media the fair market price to avoid a lawsuit. But if it is below this, the chance of a lawsuit is very unlikely. An option may be to pay part of the money but not the full amount. If you owed $1500 and paid $700, that would make a lawsuit unprofitable.

A Win For Online Property Rights Or Plain Extortion?

The questionable thing about Getty and Malibu Media’s letters is the way they often make far-fetched, empty threats, and in Malibu Media’s case with also the convenient implication of embarrassment. And it is only because of this that they extract large payments from copyright infringers that far exceed the stipulation of “fair market value” written in law. This is not illegal, but it’s also not inline with the fair principles of the law at all.

And it gets less fair when you realise that the wide-ranging, low-threshold-of-proof manner that Getty and Malibu Media are distributing these infringement letters. There are accounts of them reaching people who weren’t infringing any of their licensed content. The problem with that is that a fraction of people who never infringed any content will be delivered one of these letters. And a fraction of these will actually pay the letters, even though they were never proved of doing anything wrong.

If this is a win for online property rights, then it is a sour victory. Protecting the copyright of digital media should come through legal means, not extralegal manipulations of the law that cause outcomes bearing little semblance to what the law would have ruled in all fairness.

If it is extortion, then in Getty’s case it is quite minor, but in Malibu Media’s case it is more mediocre and quite a lot seedier. Getty’s demands of payment are far closer to the fair market price because of the high price it charges for its images. Meanwhile, the price of a porn film is expected to be around $15 liberally. And lawsuits over pornography always have an embarrassing element involved which, while unavoidable, is also very convenient and easy to exploit (were you thinking about The Brethren by John Grisham this whole time? I was).

The Lesson Learnt

Cases like these can teach us something. The takehomes from this article are:

  • Always consult reputable internet sources before making unexpected online payments. There are all too many scams out there, even by large, legitimate companies like Getty.
  • Don’t infringe the licenses of online images. If you thought this article was encouraging the opposite you were mistaken. A single Getty image can cost ~$750, so it only takes two of them for Getty to have a borderline profitable legal case against you. For free images for your website and other published content, turn on the ‘labeled for reuse’ search tool on Google Images.
  • When someone threatens to sue you, always think: ‘would this be profitable for them?’ ‘Is it an empty threat or a credible threat?’

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