Fair Use Question

[Jerry Witt (mcfilms)]

• How should I respond? I believe that I should send them the text that Joel Rothman sent me and reiterate my position that I'm not paying them and not taking the image down. Do you agree this the best course of action?

Not only should you reiterate your position, you should make it clear that you have spoken to an attorney that supports your position and that further contact by Getty will force you to bill them for the time you spend dealing with this issue. You charge $### and hour and your attorney charges $### and both of you bill in half hour increments.

• How should I expect Getty to react?

Half the time they slink into the shadows and half the time they continue to pester a bit. A big part of it DOES seem to be how clear you are about your willingness to fight.

• What should I do about their stipulation that things should remain confidential? I suppose it doesn't matter because I'm not agreeing to their terms, but do I need to be careful with this aspect of dealing with them?

Personally I think you should make it clear that you do not agree to keep anything confidential and that you intend to report on what they do as fully and as publicly as possible.

[lucia]

If you have resolves not to agree to a gag order, you could publicize the offers now. They can't unilatirally gag you.  I don't know any theory under which they can harm you for discussing this.  The only thing it does is potentially affect what they will agree to going forward and maybe your publicizing would make a difference.  You can never know what "would have happened if". You can only eventually know what does happen.  I tend to think it's better to discuss their offers in public.

[landmark]

It's the original poster here. I've decided to fully reject Getty's offer. Here's the link to the blog post in which I used the image in case anyone is interested.

http://www.capandwing.com/blog/manufactured-urgency

I'll most likely post my response to Getty soon.

[lucia]

In my opinion, those don't look like "design elements". Also, it appears you took screenshots of the images with captions to show how messaging is used as "click bait". Of course, a court will go through the 4 factors of fair use. But I always like to think of the "I know fair use when I see it test" on top of that.   This sooooo looks like fair use to me! (That said: I'm not a lawyer!)

[thehat]

What is a "design element" in this case??

[Robert Krausankas (BuddhaPi)]

What is a "design element" in this case??

header, footer with logo, and perhaps the sidebar..clearly they are reaching.

[lucia]

I think "design elements" are elements that are either clearly structural or decorative as opposed to being inserted as part of the discussion or commentary.  In this case, the images are an integral part of the discussion about "clickbait". 

In contrast, in the  SLATE blog post example I linked above, SLATE includes a very large topical but decorative image at the top of every blog post. These big images at Slate are generally not discussed and merely set a "tone". That is both structural and more 'decorative'.   As such, I interpret the SLATE images as "design elements", but the "clickbait examples" as "not design elements".

What would a judge decide: One never knows. But those don't look like 'design elements' to me. And bear in mind: I wasn't willing to buy the argument that images can't be merely because they are in a blog post. So... I try to avoid the knee-jerk reaction that "If Getty Images says X it must be wrong." or "If a person who got a Getty Images letter advances an argument it must be right".  I have standards. I think my standard is correct.  And to me:those don't look like design elements. ( Note though I am not a lawyer.)

Also: 'not being design' element is not sufficient to win the fair use case. But (though I am not a lawyer) that looks like fair use to me. They aren't having any impact on Getty's ability to sell. The context is different. There is a good reason to use the amount used -- and in fact, captions were included in the screenshots. Why? Without those captions, the amount used makes no sense.  There's a good reason for "why those images": Because -- with the captions added-- those are examples of clickbait as they appear 'in the wild'.  They aren't just "the images". 

Heck, because the captions are included in the screenshot, no one else is going to 'hotlink' those from the blog to merely decorate their site-- and that goes to the market substitution argument.

And so on. Obviously, if Getty Images sues, someone is going to need to get a lawyer to defend and write up the defense. But those look like fair use to me.

[landmark]

The "design element of a website" argument seems absurd. It's just a convoluted way of saying that the image is on the website to begin wth. By necessity, any image that's on a website at all becomes part of the "design element of [the] website."

Would there be a way to put an image on a website (fair use, proprietary, or whatever) without it becoming part of the website's "design element?" No.

Likewise, if you were writing a book, would it be possible to include a copyrighted passage from another book for analysis without it becoming part of the text of your book? No.

[lucia]

I don't think all images on web sites are "design elements". I think some are "content". But perhaps Getty Images makes the "design element" claim for all images.  But we don't know whether they do so. Presumably if they went to court, they would have to provide their definition for "design element". If it turns out to be "any and every images", a judge might view the diagnosis of "design element" to be rather meaningless as it means nothing more than "it's an image".

[landmark]

I had the chance to do a little research into this "design element of a website" phrase. I couldn't find any legal definition.

That being said, this phrase comes up in boilerplate legalese for image licensing companies. Google shows that this phrase appears in many, many companies' licensing terms, and I'd assume it could be in Getty's as well. Here's the relevant excerpt:

A. User's Rights to Materials from [company]. You agree to access, acquire, and use our Materials as follows:

[...]

3. You may access, acquire, and use the materials downloaded from [company] subject to these Terms and Conditions in the following manner:

[...]

f. As part of a design element of a website, video, film, television broadcast, CD-Rom cover, or video game. However, you may not, under any circumstances use the materials from our website in a Website template or any template or design sold individually or as part of an archive or catalog collection, or an automated shopping system, under any circumstances. You MAY however use our photos in client websites that are NOT distributed through an archive or automatic system.

So this script seems to use the "design element" phrase to distinguish from website templates. I'd guess the standard license for an image allows one to use the image in "the design element of the website" (although it's still unclear what that is exactly) and not the template. I'd also assume that companies have a different license, perhaps at a higher fee, if one wanted to use an image in a website template.

Nevertheless, this phrase has nothing do with fair use, it seems. The fair use exception should remain intact (as long the manner in which the image is used indeed meets the criteria of fair use) no matter if the image appears in the website's design elements, its template, or wherever else.

[lucia]

landmark,

However, you may not, under any circumstances use the materials from our website in a Website template or any template or design sold individually or as part of an archive or catalog collection, or an automated shopping system, under any circumstances.

The restriction is you can't use it to create a template offered for sale. That's not a distinction between "design element" and template, it's the difference between people making a bunch of templates with the images and then selling the template.  Not this is a totally reasonable provision.  Otherwise, what happens is:

* "Web designer" licenses image. So "Web designer" can display it.
* Web designer makes slick template using the image as a design element.  Customer A buys template. 
* Customer A thinks he can display the image because the web designer sold the template to him.  The template he displays uses the images as a "design element", not 'content'.
* Customer A launches his blog or web site and displays the image.  At this point, Customer A is violating copyright. (Unknowingly, but still violating.) Also: the images he is using are 'design content'.
* The copyright holder finds the image on Customer A's site, sends nastygram to customer A for displaying.
Note: Copyright holder hasn't found 'web designer' yet.  Also, unless the license prohibits the web designer from selling the template to customer A, the web designer hasn't violated copyright in the sequence above. So, the copyright holder may have no case against the web designer. (Custome A may have a claim under tort law. But that's a different matter.)

[lucia]

Nevertheless, this phrase has nothing do with fair use, it seems. The fair use exception should remain intact (as long the manner in which the image is used indeed meets the criteria of fair use) no matter if the image appears in the website's design elements, its template, or wherever else.

I doubt that. I think it would be very difficult to make a 'fair use' claim for an untransformed image used as the header images in a template.  There could be some exceptions based on the specific image and what's been done to it. But, using it in a template is a major market for images and it's very rarely any sort of "comment" or "criticism". (Not that it absolutely couldn't be-- but it's pretty rare).

[landmark]

I agree that it makes sense for a licensing company to restrict a typical license so that an image can't be used in a template for sale.

I also agree that it would be harder to imagine a fair-use exception for a template. But one could be possible, I suppose. Maybe if a doctored logo of a company was built into a template of a site that criticized that company's labor practices, environmental record, or whatever.

But my point remains. The fair-use exception isn't nullified just because the copyrighted image appears in the website's "design elements."

[Oscar Michelen]

 Lucia you are right that Getty seems to be lowering its damage demands to counter the amount of our letter program we have seen a lot of that this year especially. Hey that only means that ELI's efforts are helping bring down their demands to more reasonable levels. We should al take pride in that. I disagree with you and my friend Joel Rothman that this is a slam dunk "fair use." Generally speaking the comment and criticism must be about the work of art NOT using the work of art to supplement or enhance the commentary or criticism. So if the comment or criticism had been about the image itself then I think its 100% a fair use defense; here the odds are in your favor still but it could go the other way if the court feels that the use was not sufficiently connected to the comment or criticism or sufficiently transformative.  Keep in mind BTW - when you argue Fair Use you are raising an affirmative defense to infringement which YOU have to prove. So its essentially acknowledging that you  used the image without permission but you have a legal excuse why you can do so.