June 14th, 2016

Getty Files Copyright Suit over Stolen Photo Scheme on Facebook

A post, allegedly from Walter A. Kowalczuk, to a private Facebook group where members traded illegally in stolen images. (Image taken from court papers.)

A post, allegedly from Walter A. Kowalczuk, to a private Facebook group where members allegedly traded in stolen images. (Image taken from court papers.)

Getty Images has filed copyright infringement and other claims against an Ohio man who allegedly downloaded as many as 3,400 high resolution images from Getty’s servers without authorization, and then sold them illegally to unidentified buyers through a private Facebook group.

Getty says in its claim against Walter A. Kowalczuk, filed June 8 in US District Court in Cleveland, that he and other members of the group allegedly bought and sold images using euphemisms for the sources of those images, such as “Spaghetti” for Getty and “Apples” for Associated Press. Getty says one of its licensing partners reported the Facebook group activity in March.

That licensing partner provided copies of posts to the group that were made by Kowalczuk, Getty says in court papers. One post said, “Spaghetti and Apples served all day at the lowest prices around.” In another post, shown above, Kowalczuk allegedly offered the images for as little as 75 cents. Getty alleges that Kowalczuk made “dozens of posts” between late 2015 and spring 2016, inviting group members to contact him by private message to make purchasing arrangements.

According to the lawsuit, an employee of Photo File, which is a Getty distribution partner, contacted Kowalczuk in March about purchasing six images. (Photo File and Getty both license a photograph of a Chicago Blackhawks hockey player that Kowalczuk had offered for sale.) Kowalczuk allegedly told the Photo File employee that the source of the images was Getty, and “gave specific instructions for ordering the images, directing that each image be identified by the catalog number assigned by Getty Images,” according to court papers.

The Photo File employee complied with the instructions to purchase the images, and Kowalczuk sent a link to the images, which he had uploaded to a file transfer website.

Getty subsequently purchased 29 other images from Kowalczuk on three different occasions—March 29, April 1, and April 29—and each time, the process was the same. Kowalczuk gave instructions, Getty identified the images it wanted to purchase by its own catalog numbers, then Kowlaczuk  allegedly delivered them through a file transfer website.

Getty says Kowalczuk had downloaded the images illegally from its website using using login credentials of two unidentified Getty customers. In both cases, the customers “confirmed that Kowalczuk was neither an employee…nor authorized to use its login credentials,” Getty says. It is unclear how Kowalczuk obtained the passwords.

Most of the images that Kowalczuk downloaded and offered for sale “consisted of sports imagery,” including images from NHL, MLB, NBA and NFL games, according to Getty. The stock photo agency alleges that Kowalczuk sold the images to sports memorabilia companies. Getty is trying to identify those buyers so it can name them as additional defendants in the lawsuit.

Meanwhile, Getty is seeking damages from Kowalczuk for willful copyright infringement, contributory infringement (i.e., aiding and abetting copyright infringement by those he illegally sold images to), computer fraud, and Digital Millennium Copyright Act violations.

Kowalczuk has not yet filed a response to Getty’s claims, and efforts to locate him for comment were not immediately successful.

May 24th, 2016

4 Images for 99 Cents: Getty Signs Deal with ListaPost Social Media App

@ ListaPost

© ListaPost

Getty Images has signed an agreement to allow users of the ListaPost social media app to share and repost news, entertainment and sports images on social media for prices starting at $0.99 cents for four images, according to a press release from ListaPost. The ListaPost app lets users search Instagram for photos, save them to customized lists (without making screenshots), and turn them into slideshows for “publishing back into the social media landscape,” according to ListaPost’s statement.

Under its new content partnership with Getty, ListaPost users can browse and copy Getty’s more than 20 million editorial images into those slideshows. “Users have the option to share these slideshows externally via text, email, embeddable HTML pages and through a range of popular social media platforms.” In the press release, ListaPost co-founder Matthew Murray says users sharing Getty Images content can include individuals as well as “agencies, brands and social media influencers.”

Peter Orlowsky, Getty Images Vice President of Business Development is quoted in the press release saying that Getty is “excited to see how the market responds to ListaPost’s unique offering to Instagram users.”

Two years ago, Getty announced it was making its archive available free of charge to non-commercial users, as long as images were copied using an embed tool that collected data on the user, allowing Getty to push ads through the embed viewer without compensation to the user.

At the time, Getty seemed to be exploring a new source of revenue through advertising, while sidestepping the burden of pursuing online copyright violations by non-commercial users of its images. This latest business venture may be Getty’s attempt to reap fees for the use of its images on social media—by both commercial and non-commercial users. However, at a time when brands are hungry for new content for their social media feeds Getty seems to be selling its content at volume discounts.

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April 27th, 2016

Getty Files Complaint Against Google In Europe

Getty Images announced today that it has filed an unfair competition complaint against Google Inc. in Europe, where Google is already under fire. Getty objects to Google’s image search platform, which enables users to easily find and scroll through high resolution, full-screen displays of photographs. That deprives Getty of traffic to its own website, and takes potential sales away from the creators, publishers and distributors of those images, Getty alleges.

In a press release, Getty explains that the complaint addresses “changes made in 2013 to Google Images… which has [sic] not only impacted Getty Images’ image licensing business, but content creators around the world, by creating captivating galleries of high-resolution, copyrighted content.” Prior to 2013, Google made only low res thumbnails available in their search engine, so users had to click through to the sites of Getty and other publishers and image libraries to see full-screen images.

Getty is already a third party in the European Commission’s investigation of Google’s business practices, which the Commission believes are anti-competitive. This new Getty complaint supports that investigation, Getty says, as well as an earlier complaint filed with the European Commission by Coordination of European Picture Agencies Stock, Press and Heritage (CEPIC), an organization representing photo agencies in Europe.

“Google’s behavior is adversely affecting not only our contributors, but the lives and livelihoods of artists around the word – present and future,” Getty Images’ General Counsel, Yoko Miyashita said in a statement. “By standing in the way of a fair marketplace for images, Google is threatening innovation, and jeopardizing artists’ ability to fund the creation of important future works. Artists need to earn a living in order to sustain creativity and licensing is paramount to this; however, this cannot happen if Google is siphoning traffic and creating an environment where it can claim the profits from individuals’ creations as its own.”

In an open letter also published today, Miyashita urged photographers to get involved in the complaint. “A fair market for your works is the lifeblood of your business – no one is more greatly impacted by Google’s practices than you, the content creator,” he writes. “We invite you to engage local regulators to help put a stop to the anti-competitive scraping of your content.”

Photographers’ responses to the news on social media have been mixed.

Getty* just filed suit against Google Images for making people think photos are free.

*Owners of $1/pic iStockPhoto pic.twitter.com/OVGeiRxCPh

— David Hobby (@strobist) April 27, 2016

April 14th, 2016

Bryan Denton Wins Fifth Annual Getty Images Chris Hondros Fund Award

American photojournalist Bryan Denton has won the fifth annual $20,000 Getty Images Chris Hondros Fund (CHF) Award, and fellow photojournalist Kiana Hayeri has also been awarded the $5,000 emerging photojournalist grant, Getty Images announced today. The awards will be presented at a reception at the Aperture Gallery in New York on May 4.

Bryan Denton for The New York Times

© Bryan Denton for The New York Times

The CHF award was established to honor the work and celebrate the legacy of photojournalist Chris Hondros, who was killed in April 2011 while on assignment covering the Libyan civil war. The four previous CHF Award winners were Kevin Frayer, Daniel Berehulak, Andrea Bruce, and Tomás Munita.

Denton has been based in Lebanon, Beirut since 2006 and has completed assignments in the Middle East, Africa, South East Asia and Afghanistan for The New York Times, Newsweek, TIME, The Wall Street Journal and more. He was previously selected as a finalist by the CHF in 2013.

“I was lucky enough to have been friends with Chris, which makes this accolade a bittersweet motivation to keep pushing my work forward, and to do so with the kindness, grace and spirit that Chris embodied both in his work and in life,” Denton said in a prepared statement.

Hayeri, who was born in Iran and migrated to Toronto as a teenager, won the emerging photojournalist grant for work exploring topics such as migration and adolescence.  Her work has appeared in publications including Le Monde, Der Spiegel, Monocle, and The Washington Post.

Jurors for the 2016 CHF awards included Getty Images vice president of news Pancho Bernasconi, New York Times photographer Todd Heisler, freelance photojournalist Jeff Swensen and CHF board president Christina Piaia, who was engaged to Hondros at the time of his death.

Related Stories:

Kevin Frayer Wins Fourth Annual Getty Images & Chris Hondros Fund Award

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October 27th, 2015

Model Wins Defamation Claim over HIV Awareness Ad

© NY State Division of Human Rights

The model whose likeness appeared in the ad has won her defamation suit. © NY State Division of Human Rights

A model who was falsely identified as being infected with HIV in a 2013 public service advertisement is entitled to damages for defamation, according to a report in New York Law Journal.

State court judge Thomas Scuccimarra said in his ruling that falsely identifying the model in a stock photo as HIV positive was defamatory because “from the perspective of the average person, [it] clearly subjects her to public contempt, ridicule, aversion or disgrace.”

The model, Avril Nolan, sued for defamation after her likeness appeared without her permission in an ad by the New York State Division of Human Rights. The ad featured a photo licensed from Getty Images and headlines that said “I am positive (+)” and “I have rights.” The ad copy said, “People who are HIV positive are protected by the New York State human rights law” and provided information for contacting the state’s Division of Human Rights.

Nolan does not have HIV. But the photo, which was licensed from Getty Images, appeared with no disclaimer stating that Nolan was a non-infected model posing for a stock image.

Judge Scuccimarra said in his ruling that it was “self-evident” that the state’s use of the model’s likeness was defamatory, according to the New York Law Journal report. The standards for defamation, he explained in the ruling, are the “sensibilities of society as to what disease bears a pejorative stamp.”

The judge noted that the New York State Division of Human Rights ignored warnings provided by Getty with the image license not to use the photo in any way that might be considered pornographic, defamatory, unflattering or controversial to a reasonable viewer.

The judge rejected out of hand the state’s argument that it didn’t violate Nolan’s rights under the state’s Civil Rights laws because the ad was a public service announcement, rather than a commercial advertisement.

A trial date for damages has not been set.

Nolan also sued Getty for unauthorized use of the photo, claiming she had never authorized its use for commercial purposes. That claim was settled out of court earlier this year, according to New York Law Journal.

— David Walker

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May 7th, 2015

Getty Images and Instagram Launch $10K Social Media Photo Grant

Photographers who use Instagram to document and share stories of underrepresented communities are eligible for a new $10,000 grant announced today by Getty Images and Instagram.

According to an announcement from Instagram, the judges will pick three winners based on “the existing body of work represented on their Instagram account, focusing on the quality of their imagery, their photographic skills and on the project and stories told through their photos.”

“Photographers in all corners of the world use the Instagram platform to share unique and authentic stories that otherwise rarely come into focus,” Getty’s senior director of content partnerships Elodie Malliet Storm said in a statement.

“This grant captures the global enthusiasm from photographers to continue to push their craft to new levels,” added Instagram community director Amanda Kelso.

In addition to the grant money, the work of the winners will be shown at the Photoville photography festival in September in New York City. Winners will also receive mentorship from a Getty Images photographer.

The grant boasts a distinguished list of judges. They are: TIME magazine director of photography Kira Pollack; photographer Malin Fezehai; photographer Maggie Steber; photographer and National Geographic Fellow David Guttenfelder; and photographer and @EverdayIran co-founder Ramin Talaie.

Applications will be accepted through June 4, 2015 at 11:59 p.m. GMT. Getty and Instagram also released a hashtag to help spread work of the grant: #GettyImagesInstagramGrant.

For more information or to apply, visit: www.gettyimages.com/grants

Related: PDN’s 30: Malin Fezehai
PPE 2014: Leading The Revolution in Smartphone Photography
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April 16th, 2015

Kevin Frayer Wins Fourth Annual Getty Images & Chris Hondros Fund Award

©Kevin Frayer/Getty Images

©Kevin Frayer/Getty Images

Kevin Frayer has been named winner of the 2015 Getty Images and Chris Hondros Fund (CHF) Award of $20,000, and Diana Markosian has won the $5,000 emerging photojournalist award, the photo agency announced today. Both photographers are represented by Getty. They will receive their awards April 30 at a reception in New York City.

CHF was established to support the work of photojournalists whose work reflects the legacy and vision of Hondros, who was killed in 2011 while on assignment covering the Libyan civil war. The three previous CHF Award winners were Daniel Berehulak, Andrea Bruce, and Tomás Munita.

Frayer, a Canadian photojournalist based in Beijing, has documented conflict throughout the Middle East, and currently covers stories in Asia. “I aspire to use this opportunity to create meaningful photography that would move Chris in the same way his images reached me and so many others,” Frayer said in a prepared statement.

Markosian, a Moscow-born photographer and 2014 PDN’s 30, has shot assignments for National Geographic, The New York Times and other publications. She has completed several long-term projects, including “Inventing My Father,”  a widely acclaimed work about reconnecting with her estranged father.

“Chris encouraged me to take a chance on myself, to find my own way,” she says in a prepared statement.

Jurors included Getty Images Vice President for News Pancho Bernasconi, New York Times photographer Todd Heisler, freelance photojournalist Jeff Swensen and CHF Board President Christina Piaia.

Related Articles
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August 14th, 2014

Judge Upholds $1.2 Million Verdict in Morel v. AFP Copyright Case

A federal judge has upheld a $1.2 million jury award in favor of photographer Daniel Morel, after determining that there was sufficient evidence presented at the trial last year to support the verdict.

Morel won $1.2 million in damages after a federal jury determined that Getty and AFP willfully violated his copyrights by uploading eight of his exclusive news images of the 2010 Haiti earthquake, and distributing them without his permission. The award also included an additional $20,000 damages for violations of the Digital Millennium Copyright Act.

Getty and AFP had appealed the $1.2 million award on the grounds that there was not enough evidence presented at the trial to establish willful copyright infringement. They had asked the court to vacate the jury’s finding of willful infringement, reduce the award to Morel, or grant a new trial.

A federal judge rejected the appeal.

“There was evidence from which the jury could have concluded that the defendant’s infringement (and particularly AFP’s) was not just willful but reflected a gross disregard for the rights of copyright holders,” US District Court Judge Alison Nathan wrote in a decision handed down yesterday. She added, “In light of all the consideration that the jury was entitled to consider, [reduction] of the $1.2 million statutory damages award is not required.

“The evidence was plainly sufficient for the jury to conclude that AFP’s infringement was willful under either an actual knowledge or reckless disregard theory,” Nathan said. She said the evidence for willfulness on Getty’s part was “somewhat thin” in comparison to the evidence against AFP. But she went on to say that the evidence of Getty’s willfulness “was sufficient to support the jury’s verdict.”

Morel had uploaded his images to Twitter, offering to license them to news outlets. The images were stolen and re-distributed by another Twitter account holder. Judge Nathan cited evidence presented at trial that Vincent Amalvy, AFP’s  Director of Photography for the Americas,  knew or should have known that the images were actually Morel’s, and that AFP didn’t have permission to distribute them.

The evidence against Getty for willful infringement was that it left Morel’s images on its web site under a false credit for more than two weeks after AFP sent a “kill notice” telling Getty to remove the images.

The award was the maximum amount of statutory damages possible under the law.

AFP and Getty had asked the court to reduce the $1.2 million award on the grounds that it was based on a “speculative” figure of actual damages amounting to $275,000 in lost sales. Judge Nathan said that on the basis of actual downloads (1,000 or more) of the image and sale prices, the actual damage estimate was reasonable. But she went on to say that juries aren’t required in any case to base statutory awards on actual damage estimates.

She also rejected arguments that the $1.2 million statutory award was “instinsically excessive.” Noting that courts defer to the prerogative of juries to set damage awards and rarely set them aside unless they “shock the judicial conscience and constitute of denial of justice,” Nathan said AFP’s actions in particular could be seen as “gross disregard for the rights of copyright holders” and let the jury award stand.

At the same time, Nathan upheld a $10,000 jury award against AFP for Digital Millennium Copyright Act (DMCA) violations, while vacating a $10,000 award for DMCA violations against Getty.

The DMCA makes it unlawful to intentionally remove or alter copyright management information, or to knowingly provide or distribute false copyright management information with intent to conceal infringement.

Evidence presented at trial showed that Vincent Amalvy, the AFP Director of Photography, knew that Morel’s images were falsely credited to another Twitter user, but  distributed the pictures with the false credit anyway, Judge Nathan wrote in her decision.

Getty violated the DMCA by continuing to distribute the images under a false credit, after receiving notice from AFP to remove the images, the judge said. But Getty was not liable under a DMCA provision for distributing the images with knowledge before the fact that the image credits had been illegally altered.

Related Articles:

Morel v. AFP Copyright Verdict: Defense Strategy to Devalue Photos and Vilify Photographer Backfires

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March 12th, 2014

Model Release Lawsuit Survives Getty’s Challenge

A New York state judge has cleared the way for a lawsuit by a model who is accusing Getty Images of commercial use of her likeness without a model release.

State supreme court judge Ancil C. Singh rejected last week a request from Getty to throw out model Avril Nolan’s claim on First Amendment and other grounds.

Nolan sued Getty last September after her picture appeared in a public service ad promoting services for HIV-positive people. The ad, published in a free daily called AM NY, showed a picture of Nolan with the headline “I am positive (+) and I have rights.”

The ad was placed by the New York State Division of Human Rights, which licensed the image of Nolan from Getty. The photograph was shot by Getty contributor Jena Cumbo, according to court documents.

Nolan alleges that she didn’t sign a model release for the image, so Getty was in violation of New York’s right of publicity law not only for licensing the image for use in the HIV ad, but also for displaying the image on its web site.

New York state law prohibits use of a person’s likeness for advertising or trade purposes without written consent, i.e., a model release.

Getty countered in its motion for dismissal that displaying the images on its web site for licensing to third parties does not constitute advertising or trade use under the state’s right of publicity law. The agency also claimed a First Amendment right to display images for license to third parties. And it argued that Nolan should sue the State of New York, not Getty, since it was the state that used the image for advertising purposes, allegedly without consent.

But the judge concluded that Getty’s defenses are questions for a jury to decide.

The ruling was against Getty’s motion to dismiss the lawsuit, and not a ruling on the merits of Nolan’s claims.

March 6th, 2014

Getty’s Craig Peters on Why Free Images Are Good for Photographers, And for the Photo Industry

Following the announcement by Getty Images that the agency would be allowing non-commercial uses of its images free of charge, we interviewed Craig Peters, Senior Vice President of Business Development, Marketing at Content Images at Getty, to try and find out what the agency hopes to gain from this extraordinary decision.

As we reported today on PDNOnline,  Getty has released a new embed tool to make it easy for non-commercial users to share images from Getty on websites, blogs and social media channels. The new tool enables Getty to collect data on those users and and push ads through the embed viewer. We asked Peters how ad revenue will be shared, what this new business model means for the perceived value of images, and whether Getty is changing its position on enforcing copyrights on images.

(We used the image above for free, using Getty’s Embed tool)

PDN: Getty has various collections, from different sources. What images are excluded from this free usage initiative?
Craig Peters: It’s hard to give you a specific answer. The vast majority of images are in, [unless] we have restrictions from the photographer or copyright owner.

PDN: Are news and celebrity images available as soon as Getty uploads them?
CP: They’re made available as soon as they’re uploaded.

PDN: Why is Getty giving up on the idea of charging everyone–even small non-commercial users– for use of images? (more…)