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Controlling illegal use of copyrighted material on the Web

Fines for the misuse of a copyrighted photo are too high, critics say. Though agencies deserve a fair fee, negotiating with users is preferable to big penalties.

September 13, 2009|DAVID LAZARUS

The letter arrived at Dave Formella's Long Beach travel agency the other day. It's fair to say it freaked him out.

"It has come to our attention that you are using an image represented by Getty Images for online promotional purposes," the letter from the photo service began. It demanded $1,000 in damages, or $900 if Formella agreed to pony up the cash within two weeks.

"We were really surprised, because we didn't think we were using any copyrighted pictures," Formella, 51, told me. He said he immediately pulled every photo from his company's site, which had been put together by a Web-design firm.

But Formella said he won't pay hundreds of dollars for inadvertently using the photo -- a generic shot of a woman sitting in front of a computer. Getty charges as little as $49 to license such images.

"A thousand dollars in damages?" Formella said incredulously. "Are they kidding?"

That's undoubtedly a common reaction among the tens of thousands of people who receive such letters each year from Getty and another leading image provider, Corbis, owned by Bill Gates.

But Getty and Corbis say their efforts to enforce copyrights of the more than 200 million photos under their control ensure that the photographers who took the shots are rightly compensated for their work.

Many of these photographers are essentially small businesses too, just like Formella. Typically they pocket between 30% and 70% of licensing fees for copyrighted works.

Getty and Corbis say the steep penalty for copyright infringement is also needed to serve as a deterrent. But how much is too much?

Oscar Michelen, a New York attorney who focuses on damages claims by Getty and Corbis, called four-figure fines "a legalized form of extortion."

"The damages they're requesting aren't equal to the copyright infringement," he said, adding that "there's no law that says definitively what images are worth in the digital age."

Getty, for one, doesn't see it that way.

"This level of damages is supported by the cost we incur," said Lisa Willmer, corporate counsel for Getty Images. "What we're asking for is supported by the facts."

She said Getty typically factors in the original licensing cost of a photo and how long the copyright infringement lasted, as well as the company's expenses in pursuing a damages claim. Most such claims, she said, range from $1,000 to $1,200.

Willmer acknowledged that this level of damages was also intended to send a message to actual and would-be copyright violators.

"The message is that you need to respect copyright law," she said. "You're much better off licensing an image."

Getty says it finds about 42,000 examples of copyright infringement a year. For its part, Corbis says it uncovers about 70,000 violations annually.

"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.

"We need to make sure the damages serve as a deterrent," Keeley said. "For businesses like Corbis or Getty to continue, we need to make sure people are taking the legitimate route."

Michelen, the attorney, said he doesn't disagree with that goal. He just believes that any damages related to violating a picture's copyright should be commensurate, more or less, with the photo's online market value.

"There's no rationality for their pricing," Michelen said. "And in many cases, people have no idea that they're even infringing on someone's copyright."

I'm sympathetic to both sides in this matter. I believe Formella, the travel agency owner, when he says he didn't know that one of the photos on his website was controlled by Getty. Once he found out, he did the right thing and immediately took it down.

A thousand bucks in damages seems more than a little harsh for such a situation.

But I can also appreciate the importance of making sure that whoever created that photo is compensated for his or her work, and the need to deter people from ripping off copyrighted photos willy-nilly on the Web.

The answer here is flexibility. Before people like Formella dig in their heels at paying a sky-high damages claim, they should contact the photo company and make a good-faith effort to pay a reasonable sum -- say, two or three times the original licensing fee.

Fair is fair, after all.

For their part, Getty and Corbis should ease up on the legal rough stuff and adopt a more conciliatory approach, especially in what are clearly minor cases of copyright infringement, probably resulting from a case of mistaken identity.

They should open with a realistic demand for damages -- say, five times the original licensing fee -- and then be willing to negotiate a lower amount that more accurately reflects the circumstances of a case.

In more egregious infringement cases, of course, the companies should go after the violator with legal guns blazing. It's one thing when some blogger inadvertently uses a copyrighted image to illustrate a posting. It's quite another when someone deliberately steals dozens or hundreds of images from Getty's or Corbis' catalog.

Getty's Willmer said it's a full-time job keeping up with copyright infringement in the age of the Internet.

"I liken it to the game Whac-A-Mole," she said.

Well, there it is: You can't win that game. The moles will keep popping out forever.

A mallet isn't very effective in such situations.


David Lazarus' column runs Wednesdays and Sundays.

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