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
The 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:
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
- 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). ↩
- 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). ↩
- 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). ↩
- Judy G. Russell, “A terms of use intro,” The Legal Genealogist, posted 27 Apr 2012 (https://www.legalgenealogist.com/blog : accessed 6 Mar 2014). ↩
- “Website terms: Getty Images Site Terms of Use,” March 2014, GettyImages.com (http://www.gettyimages.com/ : accessed 6 Mar 2014). ↩
- Brustein, “Since It Can’t Sue Us All, Getty Images Embraces Embedded Photos,” BloombergBusinessweek. ↩
- See Judy G. Russell, “The commercial conundrum,” The Legal Genealogist, posted 1 Feb 2013 (https://www.legalgenealogist.com/blog : accessed 6 Mar 2014). ↩
- Indemnification paragraph, “Website terms: Getty Images Site Terms of Use,” March 2014, GettyImages.com. ↩
- Ibid., disclaimer paragraph. ↩
- Ibid., Termination paragraph. ↩
- Ibid., Applicable Law and Venue paragraph. ↩
I knew when I saw these headlines over the past couple of days that you would have something to say about it! 🙂 Thanks, as always, for making things clear.
Thanks for the kind words, Melanie. Glad I can help.
Judy,
I want to let you know that your blog post is listed in today’s Fab Finds post at http://janasgenealogyandfamilyhistory.blogspot.com/2014/03/follow-friday-fab-finds-for-march-7-2014.html
Have a great weekend!
Thanks so much, Jana!
You are a champ! Thanks for wading through the legal stuff and explaining it all so clearly. I confess that I’m the worst at just clicking that button that says I read the terms and agree to them – without really reading at all, mind you.
Glad to help, Wendy!
I saw it posted elsewhere, but your explanation is a lot more detailed. I wasn’t planning on using them as I plan on adding affiliate links at some point and don’t want to try and figure out which things I need to remove. Figure it’s better to follow your advice from your commercial article https://www.legalgenealogist.com/blog/2013/02/01/the-commercial-conundrum
For safety’s sake, yes, buying images or using only public domain materials is the way to go if you’re going to add affiliate deals.
I admit that I AM giddy! Thanks, however, for making sure my giddiness was tempered with the reality of the Terms of Use. Now, how did you get the text to wrap the pic?
From sunny and springlike Seattle!
Jill
You’re going to need to add some code to the “iframe” section of the embedded image, Jill. The command is float, and the parameters will vary depending on what you want to do. Try adding this:
style="float:left;margin:10px;"after thescrolling="no"part of the iframe command. You can read more about float at W3 Schools.Using these sorts of techniques you could do all sorts of things, including hiding the logo, attribution etc. I guess this all boils down to what constitutes the ‘Embedded Viewer’ – is it the underlying code or the visual appearance? I’m very surprised that they have made no direct stipulation about that in the Terms.
They certainly could have made it clearer that “using the embedded viewer” means using their specific iframe code. Clearly, in context, they mean the exact code that appears when you click on the link for embedding an image. But they should have said that flat out.
Have you paid for your use of Getty images in this post? $699 seems rather a lot. Or have you some other undisclosed wrinkle that allows your use of the image?
The legal principle is called “fair use.” See 17 U.S.C. § 107.
I found myself here as this is one of the few posts that I have found that documents the sorts of issues that immediately struck me when I saw Getty’s announcement. I appreciate that this is a US focussed blog, but I have one specific question that relates to the EU and wondered if anyone has any thoughts – there is an EU Directive around online privacy, which most noatbly lays down rules about cookies (see http://www.cookielaw.org/the-cookie-law/). If someone in the EU embeds a Getty image, do they have responsibility to inform the user of the cookies that getty is setting, or because it is in an iFrame and is technically another page, would that responsibility fall to Getty? And because Getty presumably is US hosted, does that mean that the regulations do not apply? I suspect that there’s no simple answer!
I’m not a tech expert by any means, but I would wonder whether using the iframe embed code even qualifies as a cookie? I suspect it doesn’t, because it isn’t stored on the user’s computer.
What an excellent post!
On the non-commercial issue, there is a little more clarification in this article from the British Journal of Photography:
Thanks for the kind words, Peter! And what good news on the ad-revenue front. It would sure be nice if Getty would put that in writing in its terms of use.
I should have mentioned that Creative Commons has a nice post on why CC-licensed material might still be a better option than Getty Images (though I would disagree with its assertion that its definition of non-commercial use is clearer than Getty’s).
I couldn’t agree more than the Creative Commons definition of non-commercial leaves an awful lot of grey zone.
I jumped right on this yesterday when I wrote this blog post (it published this morning). It’s in the attached link; you can see the image embedded. I wish that the Getty Images logo wasn’t so big—it’s kind of intrusive. But hey, it was free, so I’m not really complaining. I usually stick to ALL my own content, but I intend to try out Getty’s new “service,” albeit cautiously.
Can you contrast this with embedding a YouTube video? I haven’t read YouTube’s TOS, but just like Getty warning that an image can be pulled, the same can happen with an embedded YouTube video for a variety of reasons, including DMCA violation, account suspension, or the person just otherwise deleting the video. YouTube videos can often contain ads too, either pre-roll or popup.
Absolutely it can be pulled, by the uploader or by YouTube. And YouTube also requires that you use their embed.
I happen to use an image from google search that consequently was a getty image. Is there a way to search my website for any images that maybe getty images? To avoid any legal problems?
Thanks,
Lisa
I don’t know of any automatic system, but if you have been in the habit of simply using Google images without checking copyright issues, you may have more problems than just with Getty.
what if you want to use An Image from Getty in a video?? How can you Embed in a video? I don’t get it..
You’ll have to contact Getty for that — and it may very well not permit embedding in a video.