[STOCKPHOTO] Ramifications Of Signing The New Getty Images Contract
Joseph Pobereskin
If so, please excuse the duplication.
An Important Message from the StockArtistsAlliance:
The Steering Committee of the StockArtistsAlliance implores the world's
photographic community to pay close attention to the potential ramifications
of Getty Images' new contract for contributors. If you've been wondering
about the specifics of this contract, please read what we have to say.
In our opinion, signing the new Getty Images contract is not in any
photographer's best interests. Every photographer has an important business
decision to make as Getty Images tries to impose its new business model on
independent stock photographers worldwide. These comments are our
interpretation of a legal review of the 33 pages of Getty Images' documents:
18 pages in the Standard Agreement plus 5 pages each for the respective Brand
Agreements accompanied by 11 pages of Q & A representing Getty's own
"nonbinding" interpretations. This contract was recently reviewed by our
retained counsel, Mary Luria of Davis and Gilbert in New York City, who
represents the more than 500 individual members of the StockArtistsAlliance,
all contributing artists to Getty Images' brands.
It is the opinion of the SAA Steering Committee and a majority of SAA members
that this contract is filled with convoluted legal jargon which is almost
impossible for the lay person to understand. In fact, our attorney, who is
one of the world's most respected intellectual property attorneys, had this
to say about the new Getty Images contract: "Even the most astute business
person with a good grasp of legalese cannot understand what this contract
says. Even a paralegal would need an attorney's advice to fully understand
this contract."
It should be noted that the following synopsis of contractual terms and
protocol describes issues that are not necessarily new to the pending Getty
contract but that, in some cases, can also be attributed to existing
contracts. Many of these issues have only come to light at the present time
as a result of analysis by SAA legal counsel and her recent review of
numerous contracts from the various Getty brands.
According to Mary Luria, if you sign the new Getty Images contract you will
be agreeing to the following...
1. You will waive all rights to receive credit for creating your images.
Getty Images worldwide, its subagents and its clients are not obliged to
credit images with the contributor's name. In fact, the photographer would
waive all rights to be identified as the creator of the very images s/he has
given Getty Images to market. Getty and its brands have the right to credit
in their own names--indeed those names may be the only credit and the
photographer may be totally anonymous. (clauses 3.1-3.2)
The contract says Getty Images can do whatever they want to with your images.
Clause 3.1 (Credit) describes how you will supply Getty Images with credit
information but doesn't obligate Getty Images to credit you as the creator.
In 3.2 you waive your right to be identified as the creator. You consent to
Getty Images modifying (presumably altering or combining yours with other
images including those not your own -- even work-for-hire, 90/10 Getty
financed images and other royalty free pictures) your images, specifically
allowing them to create derivatives. Further, it is clear that you would not
own the copyright in such derivative images--Getty or its client would. You
cannot "pull" an accepted image, it is Getty's for the duration of the
contract plus a period of time that follows termination. Getty, on the other
hand, has total freedom as to how (and whether) to market your images and can
stop marketing any image at any time without returning it to you.
Moral Rights, in the US, are granted under 1990 legislation, the Visual
Artists' Rights Act (VARA). According to this law it may not be possible for
artists to waive their moral rights in a blanket fashion as presented in the
Getty Images contract. The Visual Artists' Rights Act clearly states that
moral rights may be waived but the waiver must be very specific: the creator
must consent in a written and signed document specifically identifying the
artwork, the uses of that work, and with a clause limiting the waiver to both
aspects. Where the artwork is created by more than one author, any one
creator's waiver binds the group.
Getty Images is clearly reaching as broadly as they can, perhaps in violation
of US law, in order to make this rights grab. Outside the US, blanket moral
rights waivers may well be contrary to law.
2. Under the new contract Getty Images has broad publishing rights to create
products using a photographer's images. Getty Images can publish fine art
editions (this in contravention of the Copyright Act which specifically
states that only the author may issue limited editions and in quantities of
200 or less), art books, and documentaries using any of the contributor's
images.
The contract does not specify how a contributor would be reimbursed for these
uses, if at all. Getty Images could go into the publishing business and use
your photos in books, prints and other products and not pay you a cent for
any of those uses. Free advertising use is granted to all of Getty Images'
divisions and its subagents, including use of the creator's name amounting to
an unpaid endorsement. Only use in the Getty annual report is paid. (clause
3, Brand Agreement clause F).
3. The photographer will have limited rights to publish accepted images
elsewhere. In addition to fine art prints, you may publish images in books
and documentaries that are mostly about your own work, or on your personal
web site, subject to Getty Images' consent and this consent is revocable at
Getty Images' sole discretion (clause 4).
4. While Getty Images is offering 50% royalties for analog licenses in a
photographer's home territory, they only offer 40% if a license is digitally
fulfilled. For all other licenses outside the photographer's home territory,
digital and analog, the photographer will be paid 30% (clause 5 and Brand
Agreement).
In a conference call with financial analysts recently, Getty Images' CEO
Jonathan Klein stated that they were aiming to have most of their US licenses
delivered digitally within three years, European licenses within five years.
We estimate that about two-thirds of Getty Images' total licenses are in the
United States & Canada. This means that photographers who happen to reside
anywhere outside the US & Canada will receive only 30% of licenses from Getty
Images' biggest market while photographers who happen to reside in the US &
Canada will earn substantially more money from their images. Getty
encourages digital purchases with pricing and discourages analog purchases
with extra charges.
5. Getty Images can raise existing fees or add any new fees without
restriction. This includes new charges for things now done for free or not
yet offered. Getty Images history here is not encouraging. Stone
photographers are now being charged, in some cases, more than $1500 per
catalogue image, an increase of over $1000 in the last 3 years although this
will now be reduced to $738 to start, but permits annual increases of 8%.
6. Many countries outside the United States & Canada typically apply a
withholding (income) tax on the total license amount that will be paid to
foreigners. Under terms of the new contract Getty Images claims all foreign
tax credits. Photographers would not receive any credit for foreign taxes
paid by Getty Images and then credited back to Getty. Getty Images retains
the right to make the deduction before calculating royalty payments, yet when
they get the tax credit, Getty Images keeps the full amount (by comparison,
under the current FPG contract and the G40 Stone contract Getty Images does
not deduct for foreign taxes that they know will be credited back to them).
Therefore the photographer will not be receiving their rightful share of this
tax credit. Instead this windfall will go directly to Getty Images. In
essence the photographer will be losing upwards of 5% of the gross license
fee without even knowing it or having it reported on a Sales Advice or
remittance report (clause 5.6).
7. Photographers will be able to audit Getty Images once in any two year
period and limited to the previous two years; and if 10% underpayment is
found, Getty Images will reimburse the photographer for the cost of the audit
up to $5,000 (clause 5.8).
By comparison, many audit clauses in the rest of the industry offer annual
audits for the term of the contract or the statute of limitations, and 5% is
the common overpayment threshold that triggers the company to reimburse audit
costs.
Getty Images' new contract is very limiting as to which of their records a
photographer can audit. Their clause regarding this does not indicate that
the photographer's auditor may review Getty Images' contracts with their
subagents. This would severely limit an auditor's ability to know whether or
not the photographer is truly receiving his/her rightful share of income
earned on those images licensed in foreign countries. Getty Images must pay
a photographer whose audit found such discrepancies only when Getty and the
photographer agree on the amount or at the end of a potentially lengthy
arbitration.
8. Getty Images assumes no responsibility for loss or damage to a
photographer's images. All of the photographer's rights to lost images in
the past would be waived under the terms of the new contract. The
photographer would have little recourse regarding any such losses. Many
industry insiders have suggested that The Image Bank has lost tens of
thousands of images, perhaps forever. If this is true, those photographers
involved would have no recourse to sue Getty Images for damages if they sign
the new contract. A recent lawsuit against Getty Images by an Image Bank
photographer was settled in his favor, though the terms of that settlement
are confidential.
Upon termination of the new contract, Getty Images would have up to 3 years
to return a photographer's images but accepts no liability for loss or
damage. Bottom-line, Getty Images has no obligation to return a
photographer's images at all and, at most, agrees to pay the photographer
$100 per image up to $10,000 in all. However, as if in contradiction to this
statement, the contract indicates that by signing the agreement the
photographer also gives up any right to make such claims (clauses 6.1, 10.4).
9. Getty Images has "first right of refusal" of images if you receive any
confidential information regarding those images. Such information could be
from communication with an editor, access to their photographer web site or
other information that you may receive with or without your consent (clause
6.1.4).
(Please take note of this comment from our attorney: If you want
confidential treatment of your shooting information, you must stamp
"CONFIDENTIAL AND PROPRIETARY" on all submission material in addition to your
copyright notice.)
Technically, if Getty Images were to say, "cows are in," then every cow
picture the photographer might shoot must be submitted to Getty Images first.
If you suggest cows to Getty, they have no obligations to you.
10. The photographer agrees to give Getty Images an absolute warranty that
his or her images do not infringe on any trademark or copyright. This
represents a significant increase in the photographer's liability.
Without any sensitive subject restrictions in place, the photographer would,
in effect, be promising that the model or property release s/he gives Getty
Images allows for these images to be used in any way without restriction by
Getty Images and its clients, and that images can be licensed for any use
including sensitive subjects such as incest, rape, AIDS, homosexuality,
incontinence, etc., (clause 7).
This could potentially put photographers at great risk of law suits from
models or property owners represented in the photographer's images.
11. Photographers assume 100% of the liability if any of their warranties
are breached. In the event of any litigation, Getty Images would be able to
withhold ALL monies due to the photographer, and there is no limit on how
long they could withhold royalty payments to the photographer.
Although the photographer assumes the risk and would be paying the bills,
Getty Images, at its sole discretion, has the right (but not the obligation)
to defend against claims or settle any claims associated with the
photographer's images.
The new contract would make the photographer totally liable. Getty Images
would have little, if any, incentive to keep settlements low. In this
contract the photographer holds Getty Images harmless for all infringements
or breaches of warranties, yet Getty Images has the sole right to make all
settlements on the photographer's behalf. The photographer doesn't even have
the right to defend him or herself.
Even if the photographer's warranties are NOT breached, as would be the case
if the photographer had a Getty Images-approved valid release, the
photographer could still bear 50% of the risk if the law changes and a
general release is required for models and/or property (clause 9).
Photographers may now be responsible for half or more of such settlements,
though they have no right to participate in the negotiation of the
settlement. Getty presumably carries insurance for such losses and has the
money to pay the premiums, while many photographers self-insure.
12. By signing Getty Images' new contract the photographer agrees to be
personally liable. This means that even if a photographer were contracted
with Getty Images through a company, corporation or trust, she/he could be
still be personally sued and his/her personal assets would be at risk (clause
11.6).
13. By signing the contract the photographer agrees that s/he cannot sue
Getty Images and that any dispute must be settled by arbitration in Seattle
or New York. This puts photographers living outside those two cities at a
great disadvantage. For any legal action between Getty Images and a
photographer living outside the United States it would be so expensive as to
be impractical to challenge Getty Images on even the largest legal issue.
Were Getty Images to take action against a photographer living outside the
US, the expense of the defense could potentially result in severe financial
hardship due to the extreme expense of traveling and lodging while proceeding
in a US court.
The contract states that if Getty Images were to prevail in any lawsuit, the
photographer must pay all or part of Getty Images' legal costs, including
their attorney fees, accountant fees, etc. Future class action suits and
multiple plaintiff suits by photographers may be precluded totally. (sections
11.8, 5.8)
Due to Getty Images' acquisition of large stock photo libraries in recent
years, there may be many areas of concern where Getty Images might be at
great risk, such as the potential lost Image Bank images. This new contract
appears to be written to lessen Getty Images' vulnerability to the
contributor's disadvantage.
14. There is no time limit specified in the contract for Getty Images to
review images, market accepted images, or even return images to you except
that the contract states rejected images will be returned to the photographer
within 30 days "after editing." However, this is only a reasonable efforts
obligation, not absolute. Getty Images could keep a submission for review
for as long as they wanted, and there is no time period specified as to when
an accepted image would be uploaded or marketed. Meanwhile the photographer
cannot market the image elsewhere. (section 6)
If Getty Images were to reject images for your brand, if you've signed any of
the other Brand Agreements as well, then Getty Images could potentially move
these images around the editing departments of the various brands involved
for an indefinite period of time, effectively keeping your images out of the
marketplace and out of it's competitors' hands.
15. Getty Images has removed its status as "agent," which also effectively
removes many fiduciary responsibilities it had under previous contracts.
Getty Images has no obligation to use its best efforts or commercially
reasonable efforts on behalf of photographers to market your images. This
means that a photographer would have no recourse if any preferential
treatment was ever shown in marketing any other images for any reason
whatsoever (Brand Agreement section C). This means Getty Images could
promote images that it makes more income from (the so-called 90/10 images) at
the expense of your 50/50 images.
16. The new contract also indicates that in the event of extraordinary
losses by a photographer's "brand company" including subagent or client
bankruptcy, the photographer agrees to forfeit payments due. This is in
contravention of their promise to shield you from bad debt risk (clauses
10.6, 5.7).
In short, this contract arrogates all rights to Getty Images while making no
obligations to the photographers.
It is extremely important that all photographers fully grasp the
ramifications of signing the new Getty Images contract. We feel that this is
a bad deal for photographers and while each photographer must make his/her
own decision as to whether or not they want to move forward with Getty
Images, we cannot recommend signing this contract in its current form. This
contract's fate will have major impact on the stock photography industry as
all others follow the industry leader.
The above comments are the opinions of members of the SAA Steering Committee
and are not necessarily the opinions of all SAA members, though a consensus
of our membership shares these views.
The StockArtistsAlliance is endorsed by the American Society of Media
Photographers (ASMP), the Advertising Photographers of America (APA) and the
Association of Photographers in the UK (AOP).
>From the SAA Steering Committee:
Glen Allison
Fred Licht
Butch Martin
Joseph Pobereskin
Robert Rathe
Ken Reid
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Joseph Pobereskin Photography NEW YORK +1 (973) 313-0799
http://www.pobereskin.com
jos...@pobereskin.com
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robi...@aol.com
In a message dated 5/10/01 3:47:53 PM, jos...@pobereskin.com writes:
<<
In our opinion, signing the new Getty Images contract is not in any
photographer's best interests. Every photographer has an important business
decision to make as Getty Images tries to impose its new business model on >>
Are there actually photographers that sign this contract? Please tell me it
aint so.
George Robinson
http://www.georgerobinson.com
kli...@gte.net
> You may have already seen this very important message on another
chat forum.
> If so, please excuse the duplication.
>
>
> An Important Message from the StockArtistsAlliance:
>
>
> The Steering Committee of the StockArtistsAlliance implores the
world's
> photographic community to pay close attention to the potential
ramifications
> of Getty Images' new contract for contributors. If you've been
wondering
> about the specifics of this contract, please read what we have to
What was everyone's take on what Joe posted here? Was this a surprise
to anyone? Did anyone learn anything with regard to what to look for
in their own contracts with other agents? Do any of you other agents
have any thoughts on what was posted here by Joe?
Thanks,
Mark Romine