[Text/Observer Network columnist Dai Yuxiao]
A few days ago, Visual China's "touching porcelain-style rights protection" attracted public attention. Photographer Dai Jianfeng was accused by Visual China of infringement of 173 photos because he used his own photos on his public account, claiming more than 80,000 yuan.
Visual China responded: "The images involved are sold by the photographer's authorized photo library Stocktrek Images. Stocktrek Images licenses the images to Getty Iamges. As the exclusive partner of Getty Images in Chinese mainland, Visual China has the full sales rights including the images involved. ”
However, Dai himself said that he had verified with Stocktrek that Visual China was not authorized and that Getty Images did not have the right to sublicense the copyright.
This is not the first time Visual China has sparked controversy over copyright issues, as the company sold online photos of black holes taken by the Event Horizon Telescope and placed in the public domain for free use three years ago, and was criticized by the Communist Youth League for falsely claiming to own the copyright of images of the Chinese flag and national emblem.
Visual China's copyright appropriation, monopolistic practices, and aggressive "claims" models are not original, and most of them were learned from their partner Getty Images.
1. The origin of the image licensing company
Getty Images, like Visual China, is an "image licensing company." Such companies own the copyrights of many images and videos and other resources, and rely on selling these copyrights for profit.
In order to understand how the image hegemony of such companies is established, it is necessary to first describe how they emerged.
Let's say I'm going to write an article about feminism and want to include a picture of a feminist in it. But I didn't have any pictures myself, so I looked for them online. Image search engines quickly provided countless relevant images.
The problem is that I don't know if it's legal to use these images, and I can't even be sure if the people in the images are really feminists. If a group of ordinary girls who don't identify with feminism get together and chat, and are photographed posting on the Internet and falsely claiming to be a feminist rally, I download their photos and put them in my article, and they see that they find that their photos are offended by Zhang Guan Li Dai on behalf of feminists, and I may be held responsible.
The safest way to avoid this is to find someone to buy the image. If I know a professional photographer who has photographed feminist rallies, of course I can buy it directly from him. But most people don't know any professional photographers, and most photographers don't have time to sell their photos all day. In order to meet the needs of both image users and image creators, image licensing companies were born.
Photographers can give their photos to licensing companies, which will sort them out and list them for sale. Users who need to use photos know that the image licensing company has a lot of photos in their hands and can go directly to them to buy photos to use. The image licensing company takes a middleman's fee from the amount paid by the user and then uses the rest of the money to pay the photographer.
From the perspective of the photo user, there are several advantages to finding a regular image licensing company: the quality and resolution of the image are usually high, the photo is usually taken with the permission of the subject, and the image can be used without worrying about complicated legal disputes. In addition, users can also buy exclusive rights to use the image (if my company icon needs to use a building, but I don't want the image of this building to be used by others again, I can pay the image licensing company more to buy out the copyright of the image for a certain period of time or permanently).
From a photographer's point of view, the main advantage of selling photos to a formal licensing company is that you don't have to scramble around for buyers. In addition, it can save the time and energy spent on rights protection, allowing the video licensing company to hold accountable those who steal or misuse their photos instead of themselves.
Second, the rise of the Getty image
It was because of his keen understanding of the market's demand for the image licensing industry that Irish businessman Mark Getty and business partner Jonathan Klein co-founded Getty Investment LLC in London in 1995.
Mark Getty came from a noble family and came from the famous Getty Family in the United States. His grandfather, Paul Getty, made his fortune in the oil business in the early 20th century. The Getty family claimed to be a distant relative of Samuel Gettiesburg, the founder of Gettysburg, Pennsylvania, and many members of the Getty family have now returned to their ancestral homelands of England and Ireland.
Mark Getty, founder of Getty Images (Image: Financial Times)
In 1997, Getty recognized that digital technology was disrupting the traditional imaging industry, and decided to merge with PhotoDisc, a digital image publisher in Seattle, to form Getty Images. Two years later, Getty Images moved its headquarters to Seattle, where digital imaging technology was booming.
Over the next few years, Getty Images went on a buying spree of image archives, stock management companies, and competitors in the market, while beginning to develop an "editing" business that targeted the media with news, sports, and entertainment imagery, making it cheaper and faster to get footage from photographer to user.
By 2006, Getty Images had grown into an industry giant with 2,000 employees, large offices in London and New York, and more than $130 million in profits.
Getty Images homepage (Image: Getty Images)
But at the same time, the image licensing market is gradually reaching saturation, many small and medium-sized image licensing companies have begun to eat into the market share of Getty Images at low prices, and Getty Images' profit growth and commercial expansion have also fallen into a bottleneck.
Getty Images' net income margin was an impressive 16.6%
In 2008, Getty and Klein sold Getty Images to private equity firms Herman and Friedman for $2.4 billion. At the same time, in order to solve various internal financial problems, the company began to increasingly unscrupulously grab commercial benefits, and various controversies and scandals appeared around the Getty image.
Third, the "claim" model of bullying the soft and fearing the hard
In 2008, the manager of a church in Litchfield, England, received a notice from Getty Image, asking them to pay 6,000 pounds (about 50,000 yuan). The reason is that they used several pictures of their church on their website, and the copyright of these images belongs to Getty Images.
Gavin Drake, the communications director who oversees hundreds of churches in the local diocese, found that several of the photos involved were turned in by a volunteer who downloaded several images from Getty Images from the Internet but did not pay. Drake admitted the church's illegal use of copyrighted images, but did not believe the images were worth a hefty £6,000.
Drake suggested to Getty Images that the church could only scrape together a few hundred pounds, and that they would be willing to pay the money if the company could accept it. But the other party refused, and Getty meant that the copyright of the picture belongs to us, and we can pay as much as we want.
After several rounds of haggling, Getty lowered the offer to £3,000, but the church still couldn't get the money. Finally, Drake suggested to the church that since the Getty side did not cooperate and did not follow the normal legal proceedings or dispute resolution procedures, then ignore them in the future, "We do not deal with bullies." Drake also reminded all churches in charge of his parish to confirm that there was no infringement of images.
Strangely, after Drake officially informed Getty that they wouldn't pay, the other party didn't write back. The matter was closed.
This is not the only church that has encountered this. On the forum run by the British Federation of Small Business, the most popular posts are about various image infringement issues, and many small business owners have posted that they have been subject to high claims from Getty Images for illegal use of online images.
From a legal point of view, the usual practice in encountering a similar situation should be for the copyright owner to send a "cease and desist" to the infringing party, warning the other party to stop the infringement and make corrections, otherwise the copyright owner will file a complaint.
The Getty Image method is to directly issue a "demand letter", order the other party to pay a high "compensation", and also hire a professional debt collection company to constantly harass the other party.
However, the fact is that a privately issued reminder letter, unlike a summons from a court, has no legal effect and does not automatically create a debt. Getty's "debt collection" behavior has no legal basis, which is actually a kind of extortion in disguise.
Getty's aggressive activism is aimed at small companies or individuals who can't afford to hire professional photographers, designers, or legal teams. Getty is betting that more of them are lawless and timid and don't want to be associated with the accusation of "intellectual property theft," whether true or not. In the end, they will silently hand over the money out of a calm attitude.
Once he really encounters Drake's unwilling stubble, Getty often gives up and goes straight to the next target to knock a stroke.
According to Limeone, a company that provides online legal services, they have represented more than 300 infringement claims involving Getty Images, backing down every time Getty Images discovers that a professional legal team intervenes. Jeanne Hughes, a legal expert at Limeone, noted: "The main issue for the Getty was to prove when they actually acquired the copyright to the image in question. It was clear that in some of the occasions we dealt with them, we found that they had evidentiary problems in determining ownership of the images. ”
Fourth, empty gloves white wolf
What's worse is that many of the photos that Getty sells or claims for copyright don't belong to them at all.
In 2013, Avril Nolan, a model working in New York, found her photo appearing in a New York State Department of Human Rights public service announcement with the words "I am HIV-positive." I have human rights. This image was bought by the New York State Department of Human Rights from Getty Images.
Photographs of model Avril Nolan were used to represent people living with HIV without her permission (Photo: New York State Human Rights Department)
The poster severely affected Nolan's work and life, and she had to explain to her employer, friends and family that she was not infected with HIV, but that the photo had been misused. Considering that he had never licensed the photo to anyone, Nolan decided to sue Getty Images for $450,000. In the end, the Getty chose to pay compensation to Nolan and settle.
That same year, Getty and AFP were found to have knowingly used images of the 2010 Haiti earthquake he posted on social networks without the permission of photojournalist Daniel Morrell himself. A U.S. federal court ruled that Getty and AFP violated copyright law and ordered them to pay Morrell $1.2 million in damages.
A few years later, Getty Images broke into an even bigger scandal.
The famous American photographer Carol Highsmith traveled all over the United States throughout her life and took a large number of photographs. Highsmith hoped that his images would document the American customs for future generations, rather than becoming a tool for a few to profit. So starting in 1992, she donated her photographs to the Library of Congress for free, making them free for anyone to use. The Library of Congress has also created an archive dedicated to her, which has collected more than 100,000 photographs taken by her.
Highsmith Archives at the Library of Congress (image; loc.gov）
However, in December 2015, Highsmith suddenly received a threatening letter from Getty Images, accusing her of copyright infringement by posting a piece of her own online posting. Getty Images only asked for a $120 "settlement money" this time, but it also made Highsmith realize that someone was making money from his own gratuitous donation.
Soon after, the 70-year-old Highsmith filed a lawsuit in the U.S. District Court for the Southern District of New York, accusing Getty Images of illegally selling 18,755 of her photographs. Highsmith alleges that the Getty images misrepresent the original terms of use for the photos and mislead people that they must purchase them from the Getty in order to use the images.
She also accused Getty of damaging her reputation for such behavior, and anyone who had heard of the Highsmith Archive would consider her "like a hypocrite" by pretending to donate photographs while selling them for profit.
Considering that this is not the first time that Getty images have infringed on someone else's copyright, Highsmith Fang offered Getty a hefty $1 billion in damages for habitual offenders.
In a public statement, the Getty acknowledged that the images were indeed in the public domain (which anyone could use for free), but insisted that he had the right to charge a fee for "distribution" of the images. Getty's argument is based on claiming that he offers "image search tools" that help customers "find the right image for their needs," so they can collect money.
Unfortunately, the Federal Court denied the plaintiff's request. The Getty image left only minor state law issues to resolve, and eventually settled with Highsmith out of court. The amount of compensation paid by Getty is unknown.
The federal court decided this because, from a U.S. legal perspective, Highsmith's donation of his images to the public domain meant not only that anyone could use them, but that anyone could make a profit, including the Getty images. Getty can't charge users royalties (because the copyright to these images doesn't belong to them), but they can still charge a fee for services like distributing images.
This means that even if it is common sense to snatch a free image that does not belong to you and sell it, without telling the user that the photo can be obtained for free elsewhere, it seems to us to be very unethical, but at least for now, the federal court does not consider this to violate American law.
Getty Images isn't the exception of selling free images in the public domain, but American computer technology columnist John Dvorak discovered that Corbis Images, another company, known as the world's second-largest provider of high-end visual content rights, is openly selling several photos from the Library of Congress on its website. Corbys, like Getty, did not inform users anywhere on the page that the images were in the public domain and could be downloaded for free from elsewhere.
Corbis Images was founded by Bill Gates in 1989. In 2016, Hong Kong-based Unity Glory International bought the company for no more than $100 million, and the parent company of United View International is Visual China. Visual China then licensed Corbys' gallery to partner Getty Images, eliminating an international competitor for Getty.
Visual China acquired a competitor to Getty Images and sublicensed the rights to Getty Images
Commenting on the deal, Getty CEO Klein proudly said, "It's great to get milk, cream, cheese, yogurt and beef without buying a cow." ”
However, no matter how optimistic Klein behaves, the truth is that Getty Images has been under tremendous financial pressure in recent years. In 2012, private equity firm Carlyle Group successfully acquired Getty Images for $3.3 billion, and Carlyle borrowed up to $2.6 billion for the acquisition, which became a debt for Getty to join the new company. In the years that followed, Getty had to spend a lot of his revenue on debt and dividends to private investors, leaving them with little money to invest in new technology.
To make matters worse, with the popularity of smartphones with powerful shooting performance in recent years, countless high-quality, low-cost video materials have begun to flood the market. Image licensing companies are also getting narrower profit margins, and Getty Images can only further reduce the price of images in order to survive.
Lower price for images means that photographers are paid less, with some photographers receiving only a few cents in royalties per photo. The continued decline in income has also forced many professional stock photographers to find another livelihood.
In 2019, Getty's new CEO, Craig Peters, announced that the company would introduce a "royalty-free" pricing model that would allow users to buy images at a lower price for permanent use, regardless of use, number of times and time.
The company's situation has not improved since then. Since Getty Images re-listed on the NYSE last July, its share price has fallen by more than 80%. A few days ago, Getty Images reported a second-quarter loss and lowered its expectations for this year.
Getty Images' stock price has fallen more than 80% in the past year (Google Finance)
The two founders of Getty Images, Mark Getty and Jonathan Klein, are now 63 years old and are retiring. And the companies they left behind seem to be aging and entering their twilight years.
5. Use systems and laws to restrict rent-seeking activities
In political economy, the behavior of image-licensing companies like Getty Images and Visual China is called "rent-seeking"—the activity of profiting from monopolies on resources without producing or creating wealth.
Where there are resources, there will be rent-seekers. The rise of rent-seekers often relies on three conditions: family succession, bureaucratic concessions, and information asymmetry. The history of the Getty Image is a prime example.
In recent years, in addition to the image licensing industry, there have also been some rent-seekers in the field of academic publishing. For example, Elsevier, a European academic publishing giant that owns a large number of academic journals, charges high subscription fees to users, and frequently squeezes journal editors and paper authors, and CNKI, which often collects and sells its papers without the author's permission.
CNKI was sued by the latter for including and selling more than 100 articles by Zhao Dexin, a retired professor at Zhongnan University of Economics and Law (Photo: china.com.cn)
In the current political and economic environment, it is obviously unrealistic to completely eliminate rent-seekers, and I also mentioned in the first section of the article that the Getty Images act as a kind of "middleman", which does meet the needs of many people to some extent. But that doesn't mean we're going to let them do whatever they want. For copyright rent-seeking, I think that at present, we can improve the system and legally restrict it as follows.
1. Clarify the attribution of copyright and interests. Governments should require copyright licensors to maintain complete copyright licensing information about the works they sell, such as who originally created the work, when and where the licensor acquired the copyright, and what the scope and conditions of the copyright apply. The relevant departments shall in turn conduct full supervision and regular spot checks of copyright licensors. In addition, we must also prevent the alienation of creative labor, properly protect the basic rights and interests of creators, and avoid their exploitation by copyright licensors.
2. Regulate the management of works in the public domain. A work in the public domain has no right to be appropriated by anyone. At most, copyright licensors can charge users a service fee for collecting, retrieving and distributing public domain works, but not copyright fees. At the same time, the copyright licensor must indicate on the sales page that the work is in the public domain and can be obtained for free through other channels, so as to avoid users mistakenly thinking that they can only use the work by paying for it. As for the mainland flag, national emblem and other resources, not only are they in the public domain, but there is a special law prohibiting commercial use, and copyright licensors cannot sell these resources for profit.
Third, severely punish copyright extortion and copyright fraud. Copyright authorized commercial lawyers' letters maliciously intimidating and threatening small businesses and self-media to defraud "compensation" should be dealt with as the crime of extortion. If the copyright licensor does not have the copyright of the claimed work at all, then the relevant departments should continue to pursue its legal responsibility for infringing the copyright of others. Only heavy fines can put an end to the current chaos in the copyright licensing industry.
Copyright or copyright is intellectual property. "Innovation is the number one driving force for development, and protecting intellectual property rights is protecting innovation." But we must recognize that the ultimate purpose of protecting intellectual property is to protect and motivate creators. We cannot allow a small number of rent-seekers who do not participate in the creation to use all kinds of disgraceful means to monopolize the ownership of the work and turn copyright into hegemony.
Bibliography:
[1]https://www.quora.com/What-exactly-is-Getty-Images
[2]https://www.theguardian.com/technology/2008/nov/27/internet-photography
[3]https://www.seattletimes.com/business/technology/its-crunchtime-for-seattle-based-photo-giant-getty-images-and-for-photographers/
[4]https://www.latimes.com/business/hiltzik/la-fi-hiltzik-getty-copyright-20160729-snap-story.html
[5]https://www.pcmag.com/opinions/stock-photos-will-drive-photoshop-use-into-the-ground
[6] Dabla-Norris, Era, and Paul Wade. "Rent seeking and endogenous income inequality." (2001).
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