This week, Denis Baker from Aventure Linguistique SA, an agency based in Switzerland, talks about the implications for schools and agents if permission to reproduce images for promotional material is not sought.

“Otherwise known as “legalized extortion” the dreaded “Getty Letter” is an aggressive threat of legal action accompanied by a demand for payment for the illegal use of a photograph on a website. It’s not a scam. It’s real and it’s a wake up call for our industry.

Getty Images Ltd, is perhaps the largest supplier of stock and royalty free images on the planet. For years Getty have aggressively pursued companies and individuals who have copies of their images on websites – intentional or otherwise.

The letter we received demanded 1,600CHF or about UK£1,200/US$1,500 for a single photo that appeared on our website. The letter also contained legal explanations, a screen shot of the webpage in question showing the photograph being used, and the date.  It was pay or be sued.

Here’s how it works. Getty Images has a robot/spider that crawls the web looking for its photographs. When it finds a photo it takes a screenshot, finds who owns the website, and checks its records to see whether the company has bought rights to the image. No legal rights results in the demand-for-payment letter. You cannot ignore it. You are the “end-user” and in breach of copyright.

First one letter comes demanding payment, then a second letter. Then it’s placed in the hands of a local collection company in your country and you receive their threatening phone calls. Eventually you’ll receive a visit from the bailiffs/collection agency. Then they can sue.

Most importantly though, is that it’s not just Getty Images who do this. Photograph copyright can be applied by anyone. The implications for our industry are enormous. First up, you can be sued for photos that are on your website. Secondly, you must be 100 per cent certain of the origin of every photograph on your website. You are responsible for what you publish. That’s the law, internationally.

This means the next time you are at ICEF Berlin or any workshop, and you accept a USB key or a CD or a URL to an agent’s page from a school, you have to be certain that the school has not just the rights to the images but also the rights to share them.

If you’re a school, the next time your web company fixes your school website, creates a new page for you, or shoots a video of your school and your city you have to know you have the rights to use and share the images.

Thirdly, you may have to manually check you have the rights to every image on your website and every image in the marketing materials you make available – either to the public or to agencies. You may have to go back to past web designers and ask them if they have the rights… good luck with that.

Photographs of schools exteriors and interiors are unlikely to have been taken by anyone not connected with the school. But schools or web designers usually include lovely stock pictures of the city, let’s say London, to show what an attractive study destination it is. It’s these photos you need to worry about.

The implications for schools and agents:

As an agency we are supplied with hundreds of images by schools. Clearly, if there was one image on our website that Getty wanted US$1,500 for, there were bound to be others. What if there were 10 or 20? That would be enough to put us out of business. And that would be without being sued – something we don’t have the time or definitely the money for.

Apart from the possible cost, did it also mean that in the future we would have to ask every partner school (as an agent), or web company to guarantee their photos’ origin and indemnify us against possible claims and lawsuits?

For us, the photograph in question had come from a partner school, downloaded from their agent page, where it had been made available for exactly this purpose.  

I contacted the school, who, at the same time had been contacted by a German agency with the same problem about the same photograph.

The school was great. After doing their own research they immediately accepted responsibility. A temporary assistant in the marketing department had uploaded the image unbeknownst to them years ago; something that could happen to any school.

The school asked us to settle with Getty at their expense. They took the photo off their website and agent page, and advised their partners to do the same. They also went through every photograph they had available and where they weren’t sure they had the rights also advised their partners to remove them. Apart from being time consuming and expensive, it must have been embarrassing for them.

At the same time we did a review of our photos and removed some amazing images from our website (of course it’s the most professional and beautiful photos that are involved!).  We also continued our research into what to do next.

On the Internet, a variety of courses of action are suggested. Pay Getty, ignore all the letters and wait until the bailiffs come, get a lawyer, call and try to settle. I chose to contact Getty images. It was the cheapest and quickest option.

Some things to know about Getty Images:

- Getty base the fee they demand for using a photograph on six months of usage.
-  They have a legal department filled with people employed expressly to deal with people like me calling to ask why they are being sued. That’s all they do all day long.
- Getty will negotiate

I was able to argue that because our new website had only just gone live we had used the image for only three weeks before the robot passed. Moreover the letter was dated a month after the robot had passed over the site. We received the letter two weeks after that.

As the staff at Getty are used to people screaming at them about how expensive and unfair this is, they are pretty defensive. I told the guy I spoke to that he had a horrible job and I didn’t want to fight with him.

We settled. I paid 400CHF by credit card over the phone there and then, and I received a confirmation of payment from the legal department three days later. Apparently the German agency also got about 30 per cent off what they’d been asked to pay.

Unfortunately Getty Images are completely within their legal rights to behave this way. They will tell you they are simply protecting the copyright of the photographers who have placed photographs with them in return for royalty payments. Yes, perhaps they should just ask you to stop, but they want their pound of flesh for the period you’ve used the photo for. 

It also might be unlikely that you are caught. Clearly they scan for specific images – the only reason I can think of that another agency was also caught at the same time for the same photo. However, with increasing technological ability to find images on the Internet you have to be sure of what you publish. If not, it could become very expensive for you and your partners.”

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