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Next in an occasional series on terms of use

The headlines over the past two days have been almost giddy:

“Since It Can’t Sue Us All, Getty Images Embraces Embedded Photos”1

“Getty Images Admits It Can’t Stop Internet Sharing, Opens Up Its Photos For Free”2

“Getty Images makes much of its photo portfolio free to use”3

getty1The enthusiasm, almost unbridled, is for a new policy at Getty Images allowing people to embed millions of the photos and graphics in Getty’s collections in their own online works, such as blog posts or on social media.

Note the word embed here — this does not allow anyone to download and use unwatermarked images without paying a licensing fee. It only allows the use of specific code provided by Getty Images to borrow a selected image (not every image is included) from Getty’s web servers and have it appear in another place, with attribution back to Getty.

Still, for anyone who’s ever drooled over the fabulous collection of images that Getty has — and then reluctantly looked away after seeing the licensing costs (ranging from a low of $25 to a high of $699 for the daffodil image you see here) — this seems like very good news indeed: a vast new source of images to be freely shared online.

Um… not exactly.

There are those pesky little things called terms of use. Take a look at the small print down in the bottom of the image — and here’s a bigger view of that language:

getty2

Terms of use, remember, are “the limits somebody who owns something you want to see or copy or use puts on whether or not he’ll let you see or copy or use it. These are limits that are different from copyright protection, since the law says what is and isn’t copyrighted and you can own a thing without owning the copyright. So this isn’t copyright law; it’s contract law — you and whoever owns the thing you want to see or copy or use reach a deal.”4

And the terms of use for Getty Images contain a number of “gotchas” that leave Getty’s collections not quite “free to use.” Here’s what they say about this new embed feature:

Embedded Viewer

Where enabled, you may embed Getty Images Content on a website, blog or social media platform using the embedded viewer (the “Embedded Viewer”). Not all Getty Images Content will be available for embedded use, and availability may change without notice. Getty Images reserves the right in its sole discretion to remove Getty Images Content from the Embedded Viewer. Upon request, you agree to take prompt action to stop using the Embedded Viewer and/or Getty Images Content. You may only use embedded Getty Images Content for editorial purposes (meaning relating to events that are newsworthy or of public interest). Embedded Getty Images Content may not be used: (a) for any commercial purpose (for example, in advertising, promotions or merchandising) or to suggest endorsement or sponsorship; (b) in violation of any stated restriction; (c) in a defamatory, pornographic or otherwise unlawful manner; or (d) outside of the context of the Embedded Viewer.

Getty Images (or third parties acting on its behalf) may collect data related to use of the Embedded Viewer and embedded Getty Images Content, and reserves the right to place advertisements in the Embedded Viewer or otherwise monetize its use without any compensation to you.5

So, right away, there are four big issues:

• Getty Images can’t be used “for any commercial purpose.” The examples are “in advertising, promotions or merchandising” and Businessweek.com‘s Brustein wrote, after speaking to a Getty Images representative, that embedded images “will not be allowed in contexts that promote products or businesses.” And, Brustein added: “In an Internet chock-full of self-promotion, obscurity can turn into fame in a matter of moments. What happens when an individual’s personal brand—or blog—becomes a business in and of itself? Unclear.”6

Where the line is drawn between commercial and non-commercial is murky territory, for sure. We’ve been through this question before,7 and there’s still no easy answer. If you use ads on your blog, if you sell products on your website, if you have a clickthrough affiliate deal with FlipPal or Amazon, even if your content is 100% personal, there’s no guarantee that won’t be regarded as commercial use.

• Getty Images “reserves the right to place advertisements in the Embedded Viewer or otherwise monetize its use without any compensation to you.” If you’re determined to keep your content ad-free, using the embedded images may not be the way to go. Right now, an embedded image doesn’t carry ads with it — it merely carries identification of the source and the identity of the photographer, plus links to share on Twitter, share on Tumblr and re-embed the image in another online site.

But there’s no question that Getty Images wants, very much, to create a new revenue stream for its images to make up for any loss in license fees previously paid for these images. So don’t be surprised if ads start showing up in these embedded images — and you won’t be able to do a thing about it, since you’ve agreed to that in the terms of use.

• Getty Images is keeping the right “to remove Getty Images Content from the Embedded Viewer.” That means that, at any time, your online content could be left with a great big gaping hole because an image you chose to use was pulled from the program somewhere down the line.

A photographer may have a falling out with Getty Images, for example, and withdraw his or her work from the service. Or perhaps a photographer’s work becomes the next hot product and Getty Images wants to make it subject to a license-only fee system. There are lots of possible reasons why something may all of a sudden not be available.

• “Getty Images (or third parties acting on its behalf) may collect data related to use of the Embedded Viewer and embedded Getty Images Content.” This means Getty Images can, if it chooses, find out a lot about your readers and website users. How many people view a page. How often. Where they’re from. What browser they use.

Now truth be told, our own hosting sites collect these sorts of stats, and as long as the information isn’t personally linked to an individual reader, this probably isn’t a deal breaker. But think about it. And if it bothers you, this isn’t for you.

But wait: there’s more.

Those issues are just in the embedded viewer part of the agreement.

There are also the usual kinds of other terms of use:

• If anybody sues Getty Images because of something you do on your website with respect to an embedded image, you have to defend them — and pay their attorneys’ fees.8

• Getty Images won’t pay you even if an image you embed causes problems on your website — it’s purely on an “as is” basis.9

• Getty Images can dump you out of the program and block you from using anything on its site “without notice and in its sole discretion.”10

• And if you do end up in a dispute with Getty Images, you agree to binding arbitration in the State of Washington.11

So you see what I mean… Getty Images are not quite free to use. Still, there’s a lot of potential here for non-commercial users and, if you qualify, and you want to use Getty Images, the link to search the images available for embedding is here.


SOURCES

  1. Joshua Brustein, “Since It Can’t Sue Us All, Getty Images Embraces Embedded Photos,” BloombergBusinessweek, posted 6 Mar 2014 (http://www.businessweek.com/ : accessed 6 Mar 2014).
  2. Katie Long, “Getty Images Admits It Can’t Stop Internet Sharing, Opens Up Its Photos For Free,” Slate.com, posted 5 Mar 2014 (http://www.slate.com : accessed 6 Mar 2014).
  3. Steve Musil, “Getty Images makes much of its photo portfolio free to use,” CNET.com, posted 5 Mar 2014 (http://news.cnet.com : accessed 6 Mar 2014).
  4. Judy G. Russell, “A terms of use intro,” The Legal Genealogist, posted 27 Apr 2012 (http://www.legalgenealogist.com/blog : accessed 6 Mar 2014).
  5. Website terms: Getty Images Site Terms of Use,” March 2014, GettyImages.com (http://www.gettyimages.com/ : accessed 6 Mar 2014).
  6. Brustein, “Since It Can’t Sue Us All, Getty Images Embraces Embedded Photos,” BloombergBusinessweek.
  7. See Judy G. Russell, “The commercial conundrum,” The Legal Genealogist, posted 1 Feb 2013 (http://www.legalgenealogist.com/blog : accessed 6 Mar 2014).
  8. Indemnification paragraph, “Website terms: Getty Images Site Terms of Use,” March 2014, GettyImages.com.
  9. Ibid., disclaimer paragraph.
  10. Ibid., Termination paragraph.
  11. Ibid., Applicable Law and Venue paragraph.
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