Recently, I was taking advantage of an amazing new feature released by Google that allows you to upload an image and find out where it can be found online. I was fascinated with the innovative technology and used a handful of my images to test things out. After uploading an image of my dog, I found that it was being sold on CafePress as a poster in various sizes. It can even be found for sale as I write this note (removed on April 8th, 2013).
The discovery wasn’t a total shock; I had given a high resolution version of the image to Getty for sale as per our agreement. The relationship with Getty, which has been active for about three years, had been developed through Flickr.
At first I was happy to see the image, thrilled to see that someone licensed it for an “arty” use. But I did start wondering how it was possible for me to be completely unaware that the print was for sale on such a high profile site. Usually agencies like Getty send artists statements so they can get a general sense for who purchased the image and what it was being used for. But I didn’t remember seeing a statement, and I certainly never received a royalty payment for the image that has been on sale since last July. I double checked my Getty Contributor account, and found no history of any sales for that image.
Out of curiosity I wrote to CafePress and asked them about their agreement with Getty. I explained that an image of mine was for sale on their site and I had not received a royalty payment for its use. Within 24 hours a Customer Service Consultant responded with the following statement:
“…Please note that we have a license agreement with Getty for the use of the images in their portfolio. As we are not in a position to know what the terms of your agreement with Getty are, you will need to reach out to them directly to discuss the terms of your agreement with them regarding your image and payment to you for use of that image…”
Obviously that response couldn’t be entirely true. It is hard to believe that a company as large as CafePress wouldn’t have their legal team review agreements that Getty has with their photographers. They likely do understand the terms well but don’t feel like explaining it, and that’s their business. Despite the fact that I was bringing up a potential copyright violation issue, someone there didn’t feel it was important or valid enough to get technical with me. Ok, well, we move on…
I also wrote Getty Contributor Help (a service intended to help its photographers), and after waiting about 9 days, I got a reply that read, “CafePress is partnering with Getty Images to sell prints of select Flickr images. If a print featuring your image sells through Café Press, that print sale will be reported to Getty Images and will subsequently appear on your royalty statements.”
Many of you might be thinking, “Ok, that’s great, a print sells, you get a payment…what’s the problem?” That might take some explaining…
Aside from my own interest in photography as an artist, I’ve been working with professional editorial and commercial photographers for more than 10 years. For much of that time I managed a reputable photography business and sold hundreds, if not thousands, of stock images throughout the world. In addition to personally selling these images, Getty represented the same photographer and sold plenty of the images as well. Royalty checks were plentiful at that time.
Given my experience, here is how a deal like this would normally be structured…If company “X” wanted to sell one of Getty’s images on a poster they would contact Getty, negotiate a licensing fee, pay the fee up front, and the photographer that supplied the image to Getty would receive a nifty 20-30% royalty (on average). That is common procedure, tiny royalty and all. If this happened twice a year, an amateur photographer would probably be elated.
For some reason, Getty is treating CafePress a bit differently than they might handle company “X.” Getty is allowing CafePress to choose from their thousands of Royalty-Free* images and authorizing them to sell those photographs on mouse-pads, coffee mugs, and other products all around the world, free of commitment. CafePress only owes Getty money on every individual item sold, essentially putting these photographs on consignment, thus allowing CafePress to increase their “inventory” of products, with our beautiful images, without spending anything out-of-pocket. More inventory means greater web presence, which means larger potential for revenues, which means bigger market share and overall value as a company.
If company “X” called Getty and asked to do the same, they would be shown the door. Or would they?
Let’s imagine a world where Getty handled all of its business this way. What if Company “X” approached Getty and asked to borrow an image for use in an advertising campaign, without paying a licensing fee, and say, “let’s look at our revenues next quarter and see how effective that image has been in our marketing efforts…If we are more profitable next quarter, we’ll pay you for the use of the image. Then you can split that with your photographer according to your agreement with them.”
How is Getty getting away with this licensing model? Getty Images, as far as I can tell from this “agreement,” is only allowing CafePress to select from their Flickr contributors, which means Getty is preying on amateur photographers, many of whom are not experienced in the licensing world. These artists are excited to see their images for sale online, happy to make cents on the dollar as bonus income. These contributors (mostly amateur but still very talented) are the perfect target for a company like Getty because they can bend the rules and not receive a fight. Perhaps the Flickr contributors are flattered someone out there likes their images enough to put them on a poster. I too was excited about this prospect, until I realized I wasn’t being compensated properly for the use. I believe that if Getty considered me a professional photographer, I wouldn’t have been included in this agreement with CafePress. If a professional photographer found out their images were being sold under these terms (use now, pay later), they wouldn’t stand for it.
I think it's wrong for Getty to to decide who pays now and who pays later on our behalf, and unethical to take advantage of amateur photographers. CafePress is increasing their web presence and likely their revenues and value with the help of countless photographers, but they're not getting paid to help them do so. I ended up writing Getty again and asked to terminate our contract in light of my discovery, and they obliged (after a 10 day wait) with no sympathy or concern. I may or may not have purchased the print of my dog just to see what would or wouldn’t happen. And I’ll be checking the CafePress site frequently to see how long it takes for my work to be removed from their website, post contract termination. Until then, feel free to contact Getty and let them know what you think about their latest arrangement with CafePress. - Remi Thornton, April 2, 2013
* If an image is “Royalty-Free," it means that the user/purchaser has the right to use the picture without many use restrictions based on a one-time payment to the licensor. In contrast, when an image is “Rights-Managed,” a purchaser is allowed a one-time use of the photo as specified by the license. If the user wants to use the photo for other uses an additional license needs to be purchased. In both scenarios, a payment is made to the seller for use of the image (it’s never actually "free”).