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Photog Accuses Getty of Loaning Images to CafePress Instead of Licensing Them

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Photographer Remi Thornton recently terminated his contract with Getty after finding out that the agency was allowing online retailer CafePress to use his images on potential merchandise without paying an up-front licensing fee.

In fact, according to Thornton, CafePress has an exclusive agreement with Getty, which allows them use any of the agency’s Royalty Free stock to populate their store, while only paying the photographer if the merchandise featuring their image actually sells.

While this may not seem like a huge deal to some, Thornton explains that this has never been the way photography agencies do business:

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 … For some reason, Getty is treating CafePress a bit differently.

Imagining a situation in which they expanded this practice to other companies that frequently use stock photography, the problem becomes a bit clearer:

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.’

Thornton believes that the reason Getty is managing to get away with this unorthodox way of doing business because the agreement between CafePress and Getty only includes images found through Flickr. More often than not, these are images by “mostly amateur but still very talented” photographers who are “the perfect target for a company like Getty because they can bend the rules and not receive a fight.”

You can read Thornton’s full write up on Getty’s “use now, pay later” deal with CafePress here. Now that he’s terminated his contract, Thornton plans to keep a close eye on CafePress to see just how long it takes to get his images removed.

Why I Terminated My Contract With Getty [Remi Thornton Photography via A Photo Editor]


Image credit: Photo illustration based on Peaceful Resolution by Nomadic Lass


 
 
  • Rob Elliott

    Of course Thornton is upset that he isn’t getting paid for an image that no one wants, but photographers that had people buy their stuff got paid.

    In a Business like Cafepress which is Make on Request it makes a lot of sense, if they had to licence each photo then they would have to choose a much smaller number of images. This provides revenue chances for fewer photographers and less choice to Cafepress.

    What it does though, is if your image is one like Thornton’s that is never purchased, is reward a photographer for the mistake of a Cafepress buyer. In Thornton’s case if the image had been chosen for standard licencing Cafepress would have been out cash.

    As this isn’t a situation where stock is being produced of these images ahead of time, I have no issue with this type of pay by purchase agreement.

    Thomas Hawk responded to this suggesting by saying there is no value in it at a 1.48 a image… and for him that may be true. But why should Cafepress pay Thornton and Getty $30 or $40 (or what ever the licence may be) for an image no one wants.

    Why not grab a half dozen images let people choose and if there is an image there that gets bought 90 times that never would have been picked by a Cafepress buyer then that person made money they wouldn’t have.

    It’s a no risk arrangement.

    As always though the actual payout that might be given by Getty is likely silly small, and this is more about attacking Getty then the actual agreement which is innovative for the Print/Make on Demand segment.

  • ennuipoet

    All of this is true, but Getty get’s to rewrite the rules without consulting the photographer first? Frankly it is not a problem of compensation, just the overweening arrogance of Getty doing whatever they wish because they are the biggest, basically only, game in towm.

  • http://www.bobcooleyphoto.com/ bob cooley

    As a business, that’s CafePress’ risk – not the risk of the image author.

    People don’t buy product in great quantities at CafePress, they typically purchase one item – which leaves the photographer with a very low rate on any deal for a royalty free image affixed to a coffee mug, etc.

    It’s a risk for the artist, because when someone sees the image being displayed on t-shirts, mouse-pads, etc. at Cafe Press, which has always been known as a self-printing company (with outrageous markups), they are less likely to buy the image even from a royalty-free catalog, since it has the appearance of being used commercially already, and hence, less unique (even when you are licensing royalty-free stock, you hope to be licensing images that aren’t already all over the place – particularly being used by your competitors).

    Simply put, it diminishes the value of the images.

    I’m VERY against the idea of royalty-free stock, its just bad for the industry; but this is fairly heinous treatment for any content creator.

    Its a slippery slope, and Getty continues to pour oil on it for their content creators at every turn…

  • Rob Elliott

    First yes Getty can do anything they want, that is what the contract basically says, the contract and pay scale has kept me away from them, I’d rather be an unpaid hobbyist and keep working and getting better, then give away images to Getty.

    In the end it is photographers that keep Getty in business, They are selling other people’s photos, without those other people Getty has no business. Attacking them for innovation is bad because it discourages others to innovate, particularly when the photographer is upset when his image in over 7 Months hasn’t sold any product. Not a single one of his photos (by his own admission) has been used in an actual product produced by Cafepress.

    Cafepress hasn’t done anything wrong, Getty didn’t do anything wrong (it’s one of the first times they have done something right)

    The Photography Community needs to first start paying attention to contracts, second stop working with Getty, and third need to bring notice to the right part of the Getty issue which is the pay.

    In the end that is the issue with Getty it’s the pay not the practices. No one is upset that Getty sold images to Google Drive, they are upset they didn’t get more money out of the deal. Mr Thornton isn’t upset that Getty allow Cafepress to use his images, he’s upset they didn’t do it in a way he gets paid even though the images has never sold a single piece of product.

    It’s the pay scale not the deals, and people need to narrow their focus, and encourage other sites that do stock and microstock to look at innovative deals like the one with Cafepress.

  • Rob Elliott

    That isn’t what is happening here though.

    If this was a situation where Cafepress made 500 posters with Thornston’s dog on it, and only paid him based on what is sold, I’d be against it. That isn’t happening, they have said we’d like to use this catalogue of images, we are not producing any stock so to get more images and a greater chance of sales for both us and the photographer (and Getty), we will pay for each image made. If we don’t produce a piece of stock with that image, we don’t have to pay, if we produce stock then we do.

    As they only produce stock after a picture is purchased it allows for minimum risk for Cafepress to have a large selection, while reward photographers with popular photo, and avoids having to payout for images that a buyer may have made a error in thinking it was commercially viable.

    And sadly what is happening is photographers are coming off as greedy and dilutes the message that Getty is underpaying.

    This isn’t like printing a bill board and then not paying the photographer… this is the image isn’t being used for producing stock unless someone asks for it to be. And that is where the innovation comes in.

    In the past companies produce stock and sell that stock, the company has chosen the images and produced the product. With Make on Demand companies like Cafepress they don’t produce anything unless it is made. They have blank rolls of paper, blank T-Shirts, blank mugs, etc. The images are only printed to the product after the order is made, this limits the risk of printing bad stock, and increases profits and in turn allows for the production of more items.

    Buy dealing with Getty they get a larger catalogue of image and those images that are popular get more money and those images that are unpopular get less or no money (like Mr Thornston)

    To add to this is that they would have to constantly go back to Getty to re licence on a piece meal basis or pay a silly high price for a long term rights agreement. This deal makes much more sense, saving both Cafe Press and Getty time and rewards photographers that might have been over looked while not rewarding the duds.

    If this isn’t the type of deal you want to be involved with then don’t deal with getty.

  • Vicious

    Idk , let me find a mechanic that will fix up a car for me to drive around with a for sale sign. And if I sell it then he gets paid. That sound good ?

  • Rob Elliott

    again that isn’t what is happening. No work is being done.

    They have made no product with this image on it. None.

    You go to a printer and say hey I’m going to be doing up to a 250 copy limited run of this photo, here is the file. I’ll come in as I need the prints. Do you owe the printer for all 250 right there upfront?
    Gallery offers to show one of the prints and take the orders for your prints for you, they will even contact the printer for you and then send you the cash when the transaction is complete. Does the Gallery owe you in advance for all 250 prints? Particularly if only 5 sell or none?

    no of course not. That is what is happening here, Cafepress and Getty have agreed to let the image be shown on their site for free and if people want to buy it in poster, t-shirt or mug for (for example) then they can do so and Cafepress will produce the item only when requested and pay you a royalty.

    This is a lot like how book royalties are paid. There maybe an advance but an advance is based on assumed sales, and the book as to sell more then the advance to get more royalties With first time or unproven authors there may not be an advance, particularly if the book is already done. Again that is what is happening.

    This is a royalty based agreement for a Make on Demand company that produces no stock unless an item is requested.

  • Rob Elliott

    I apologize I totally misread your comment. Doing too many things at once, and somehow read it as you saying that Cafepress should pay just like any other company the business model doesn’t matter.

    You have a valid point on the diminishing value of the image. Of course these are flickr images, and ones that in the case of Thornston no one wants.

    This isn’t Royalty free of course, this is Royalty only. As in there is no upfront payment unless the image is used. Sort of like handing your image to a ad agency to use as needed for 5 years, and they only pay you for the campaigns it is used in. If it sits unused you get nothing, if it gets used you get something. That is a Royalty or pay per use.

    In the case of the way the are being used, when you let Getty use your images you are saying here sell them to who ever, you lose control after that point, and you have to decide is it of value to you to maintain that relationship.

    With what is happening, you have to decide if you want to trust Getty (most don’t) or not. On that basis I don’t disagree, but this kinda of system is very good. If you provide photo’s to Cafepress with this kinda deal in mind, with photo’s that you are ok with being used in this fashion, then that is a good thing. Which is why Getty likely used the Flickr images as they may not be in their main catalogue.

  • Per-BKWine

    You could extend Thornton’s argument further:

    Why should the photographer let the agency use the photographer’s picture to advertise and promote a product (the agency’s licensing) without paying the photographer an up-front payment? The agency (Getty) should pay the photographer an up-front fee for the right to use the image to promote the agency’s product (i.e. the licensing).

    Sounds far fetched?

    It is not really a far-fetched parallel to see CafePress’s use (as well as other poster and merchandising sites) as similar to Getty’s own use of the photographer’s image. Or for that matter books that are printed on demand: If a product is sold, then the photographer is paid.

  • http://www.facebook.com/iamremithornton Remi Thornton

    Rob, your first remark about risk is very interesting and part of the problem for sure. If you take a royalty as a photographer (as in the CafePress example) on each item, you are taking a risk because that product might not sell. And, whether it sells or not is totally out of your hands hands, it’s up to the company that uses it to market and sell the product properly. One of the reason the licensing fee exists (with agencies) is because it’s a fair way to reduce the risk for their photographers. Getty shouldn’t be allowed to decide when or when not to take that risk on the photographer’s behalf. But that’s not what Getty is doing, they are deciding with the Cafe Press example.

    If you are on your own and you get the option to get paid per item as they sell, or a royalty, you can make the decision to take the risk or not. But as an agent, since Getty can’t contact you every time this scenario might come up (because they have thousands of other photographers and opportunities), they shouldn’t make that call for you.

  • http://www.facebook.com/iamremithornton Remi Thornton

    Rob, to clarify, I’m not upset that the image hasn’t sold. I wouldn’t expect it to really on a site with over 100,000 images on even more products. I am a small fish in a big pond. The lack of sales is not what sparked my contract termination. Nor is the contract itself really the problem, as I mentioned initially in my post, I don’t doubt it was a legal move on Getty’s part. But I do have some ethical issues with this arrangement, and that is really just my gut feeling about it. Some photographers will feel it with me, some won’t. I can tell you given the feedback I’ve gotten that less experienced photographers (amateurs) don’t agree, and professional photographers do, which I think is a real indication that Getty knew exactly what they were doing using Flickr images in this agreement with Cafe Press. BTW, I’m not automatically saying you are less experienced, I’m just generalizing based on the feedback I’ve gotten.

    So my ethical problem, aside from Getty targeting these less experienced photographers (I also mention risk below) with Getty in this case, is that they are allowing CafePress to increase their inventory, thus increasing their web presence and visibility (SEO and whatnot), thus increasing their revenues, thus increasing their value as a company. As someone that contributes to CafePress’s progress (financially and in marketshare), I would expect to be paid to help this happen. Instead, my photographs (along with the thousands of others) are being used to draw people in, but not necessarily being purchased by the people that are drawn in as they may choose another product.

    I’m really happy this simple blog post has brought up this discussion. Thanks for participating.

  • http://twitter.com/lucialiljegren lucia liljegren

    But someone does want the image. Not only does someone want it: That someone wants it and is using it for commercial purposes.

    That someone is CafePress who wants the image to populate their storefront with product. CafePress’s business model involves creating copies of the image and displaying the images superimposed on things like cups and t-shirts that one might be able to purchase from their store for sale in their storefront. That sort of copying and displaying is precisely what copyright is meant to cover even if the copy doesn’t happen to be placed on fabric, paper, a cup or anything similar, it’s still a copy and the copy is being used for commercial purposes. One might classify that purpose “advertising tangible products Cafe Press could create and ship to paying customer”.

    It may very well be that no one happened to want to tangible product. But CafePress still made and displayed a copy. And the use is entirely commercial.

    I have no idea what the contract between a photographer and Getty might be. But I can understand why some photographer wouldn’t want Getty to permit Cafe Press to make commercial use of their product without compensating the photographer.

  • garo

    “You go to a printer and say hey I’m going to be doing up to a 250 copy limited run of this photo, here is the file. I’ll come in as I need the prints. Do you owe the printer for all 250 right there upfront? ”
    Yep. You do. Unless you want to pay a higher fee for a one at a time printing.

  • Rob Elliott

    See this is where my opinion on this differs they aren’t a increasing their inventory just their catalogue. And I agree that is the likely reason they used flickr images.

    The issue is that your comparisons are incorrectly comparing this to things that aren’t comparable. Like having your image used on a BillBoard and then only getting paid based on sales. Where in that case an actual physical print was produced, and if Cafepress produced product then a standard licence would be logical.

    But when using images on Flickr that may not be of the same standards as Getty’s standard catalogue are not being used to produce product, the are being added to catalogue of images that can be used to produce product on demand.

    This is much closer to a new author who gets their first book deal and is paid solely based on sales. That is by definition royalty based, not royalty free as you described it.

    The people that agree with your assessment, first keep comparing it to things that aren’t comparable, and second often are fighting against a changing landscape for photographers in the same way people fight against all change.

    For me I’m a hobbyist, I don’t sell my work because Getty is the only game for that, and I don’t like their terms. The difference between me and “Experienced” photographers is that I’m not attached to the old model, and I think Getty and other stock sites need to adapt to how the world works today, not how it used to work.

    This is a great way for photographers willing, to allow their work to be used by sites like Cafepress for these types of purposes. I do think they need to keep a specific catalogue for this type of thing (which getty basically did). Beyond that though this is actually a good deal.

    It may not be for everyone, but of course Medium Format isn’t for everyone, Fine art isn’t for everyone, Stock isn’t for everyone, Wedding photography isn’t for everyone. Nothing is for everyone, but just because it isn’t right for you or the big names invited to Stocksy, doesn’t mean it isn’t right for others or that it is in itself somehow wrong.

  • http://www.facebook.com/iamremithornton Remi Thornton

    Rob, I greatly respect your take on this but yes, our opinions differ in many ways. I believe their catalogue is their inventory, even if it’s not hard goods. Whether or not they are printed, the items for sale on the site products ready for purchase. Even if we disagree, their catalogue has my image within it, which means I make CafePress just a little more visible online (and as a whole the other Flickr contributors a lot more visible), which benefits CafePress and not necessarily me (or the other individual photographers). I hope you understand my point, it’s a hard one to express.

    As you concluded, there is something for everyone, and somethings aren’t for everyone. I was very careful in my original blog post to make sure I was letting people know why I quit Getty, merely trying to be informative. I never asked or requested people do the same, only to let Getty know if it was a problem for them. I also appreciate this discussion greatly, and your counterpoints are valuable. However, I still stand by my original post which expresses my disappointment in Getty’s decision to allow Cafe Press to use Flickr contributor images this way, which I believe is unethical given the experience level of those contributors.

  • Halfrack

    The baseline issue is that Getty has on multiple occurrences has ‘created’ new business models that are beyond their base stock image service. A photographer should need to ‘opt in’ on these new lines. This would require Getty to communicate to either their entire client base, or a subset, to get these started. Not ideal for them, but tracking and allowing participation on a gallery or photog level based on their interests would prevent issues like this.

  • http://thomashawk.com/ Thomas Hawk

    It’s things like this that made me re-evaluate my relationship with Getty and eventually terminate it — moving my stock sales to Stocksy.

    Combined with low 20% payouts, these sorts of things just add insult to injury. Getty needs to wake up and pay photographers more money. They need to let photographers have more control over how their images are sold. Photographers should be able to opt out of these sorts of schemes if they want.

    I hope more coops continue to pop up and effectively compete with Getty. I hope more image buyers look at alternatives that compensate photographers more fairly for their images.

  • JAlmodovar

    Is anyone surprised though given recent “controversies” with Getty?

  • Guest

    I’m not sure why you’re hung up on physically printing the photo versus displaying a digital representation. I assume you would think using unlicensed artwork in my real-estate website would be the same as printing it on a billboard (if not, I’m not sure why not). If Cafe Press produced blog-ads with a virtual coffee mug featuring unlicensed artwork that would clearly be using it in advertising and thus no different from using it on any other commercial website or a billboard (I don’t know that they’re doing this). What if Ikea used unlicensed images in their web catalogue? Is that different from their physical catalogue? How is Ikea’s catalogue different from Cafe Press’s?

    Certainly it’s within the bounds of Getty’s contract and thus legal, and certainly Cafe Press could ethically negotiate a contract where they get to advertise their stuff using your images and only pay you if they sell something with your images on it. I do have a problem though because I think this is novel and I think Getty should get permission before they negotiate a contract that gets Getty paid for the use of images they’re not technically licensing, and thus not paying the image owners for (and make no mistake, that’s what happened here. Cafe Press might not be paying the content creators for images that are only in the catalogue but I’ll bet dollars to donuts there’s a fixed dollar contract that gives Getty money for the use of the library whether they ever actually “license” an image or not)

    Historically photos have been licensed in two fashions, rights-managed and royalty-free. In a royalty-free license the licensee gets to use your pictures however they want and they pay you an upfront license fee. In a rights-managed license the licensee gets exclusive use of your content and pays you some fee for exclusivity and additional royalty fees as they use it. In this case your image is being used in a commercial manner without attribution and the license on it is diluted because it can no longer be licensed exclusively, but you’re not being paid for a royalty-free license, either. That’s something new. I don’t necessarily have a problem with CafePress negotiating those terms with a bunch of amateurs on flickr, but I do think that Getty should have disclosed that they were going to take money from third parties to loan out their image library for commercial use without compensation to the content creators before they did it.

    To take this further into left-field, under Facebook’s current ToS they could technically enter a contract with somebody to do the same thing (Flickr can’t without the Getty thing. Their ToS doesn’t allow relicense). Would you be okay with Facebook offering its users’ photos to somebody for use in their catalogue if they were only used for examples of how custom products could look and not for actual use in a product? If not, how is that different from Getty receiving payment from a contract allowing somebody to use images that Getty is only paying the content creators for if a distinct transaction occurs?

  • Swade

    Wouldn’t if their consumer base increases, it would most likely increase your chances to make money off the pay-per-print scheme? As you help them increase their visibility and consumer base, you in turn are also increasing the exposure to your photos and your chances of making money. Couldn’t you potentially make more money off the photo(s) used off more pay-per-print orders than a standard license?

  • Rob Elliott

    The Difference is that word Ad. You are using the image to promote something. This image is not being used to promote anything, it is not in banner adds, it is not in adverts of any kind, you have to go to the site, find the image and choose to print it.

    If you use an unlicensed photo on your website to help sell a house… you are using someone else’s photo to advertise a physical product you are trying to sell.

    The image is not advertising anything. It is a representation of an item for purchase which if purchased provides a royalty to the content holder.

    This is a situation there Getty and Cafepress have gotten together said here is a bunch of photos most are from good amateurs that are unproven commercially, so we aren’t going to give them an advance on the photos we will only pay them royalties on the sales of their photos.

    This is much like the Publishing Industry which may or may not give an advance on a books royalties. And that is what the license would normally be, you get paid an upfront fee for 500 shirts, and if they sell more they either pay a royalty or they have to renegotiate.

    This is the most apt comparison. You are an unknown Poet, you make a deal that your poems selected from a Poetry sharing site will be handled by a agent, say Barnes and Noble. They make a deal with a Print on Demand company for a poetry compilation book, where people can select from a collection of 5,000 poems and have the book print custom. The company then pays a royalty every time the poem is published.

    That is what is happening here.

  • http://www.facebook.com/iamremithornton Remi Thornton

    Just because more people come to the site doesn’t mean my images are more likely to be found. Especially if the volume of images increase. More images for cafe press means better visibility while for me and the others it means less chance of being noticed. I think you are right to a certain extent but it is balanced by an overwhelming increase of inventory.

  • DafOwen

    You’ve advertised Stocksy quite expensively. Maybe worth giving it a rest as it sounds too faked and bit of a stuck record.

  • DafOwen

    Agreed.

    There are many different kinds of stock services other than the standard RM/RF e.g. subscription services.
    They may not be bad – but the contributors need to be aware of them and opt in.

  • http://thomashawk.com/ Thomas Hawk

    Dafowen, it hasn’t been expensive at all. It doesn’t cost me anything to express an opinion, what makes you think it is costing me any money to mention them.

    As far as Stocksy goes, it’s a brand new business model less than a month old. Its structure as a coop should be celebrated by photographers everywhere because it puts the majority of the profits of the business BACK into the hands of photographers. I get excited about that because the photographers are the ones who create the images and deserve the lion’s share of the profits associated with their images.

    As the first of it’s kind (that I’m aware of), Stocksy’s coop structure is unique. I hope it’s emulated by other agencies and that we have dozens of Stocksys pursuing dozens of different business models/channels where the common characteristic is how the profits are distributed.

    I also hope that Stocksy disrupts the other major stock players (like Getty) so that maybe they consider paying photographers more than a paltry 20% through some of their businesses.

    I believe that promoting Stocksy is good for photographers. It’s not fake at all. It’s the most authentic, sustainable, business model for selling stock out there today — from a photographers perspective. So I probably will continue to promote it. I usually do that with things that I feel strongly about.

  • DafOwen

    My mistake/typo – I meant ExTensively.
    I.e. you seem to be spamming about Stocksy and have done it yet again. To the point that you’re now turning me right off stocksy – adverse marketing.

  • http://thomashawk.com/ Thomas Hawk

    ahh yes extensively is probably a better word choice than expensively.

    I’m sorry dude, if I’m involved in something and believe in it, and believe that it’s in the interests of photographers more broadly speaking, I’m probably going to continue talking about it.

  • http://www.facebook.com/sjlocke Sean Locke

    Rob, what sounds like a more interesting place to shop?

    CafePress, now with 1,000 images on different items to choose from!
    or
    CafePress – search our database of millions of different products!

    The enlargement of the database of products itself can bring in eyeballs and using it as a selling point is advertising.

    … and I’m not particularly trusting that any sale from there would get reported correctly. And then the photographer’s 20% cut of Getty’s cut of … what? $2? $1? isn’t even worth the trouble.

  • http://thomashawk.com/ Thomas Hawk

    Some of the stuff that Cafe Press is selling of ours in this deal is super cheesy.

    I quit Getty a few weeks ago http://goo.gl/1Ks0V and yet Getty is still marketing my stuff up on Cafe Press. Getty deactivated my images on Getty.com but is still marketing them I guess by extension because of these deals, even after I quit.

    I’m not sure how much longer Cafe Press gets to sell my photos, forever?

    Here is Cafe Press representing some of my stuff: http://www.cafepress.com/+thomas-hawk+gifts

    As far as I know I haven’t been paid a nickel for this.

    The wine bottle charm cat photo feels especially cheesy to me: http://www.cafepress.com/mf/71533792/a-fluffy-tiger-type-house-cat-in_wine-charms

    Too bad there seems to be no way to get out of this crap.

  • free

    the problem with Getty and as far as photographers go is that they don’t care if they sell a million images for a dollar each, instead of one image for a million dollars. All they care about is revenue and not the value of the images. They have devalued photography in ways thought unimaginable.

  • http://www.facebook.com/pogomcl Mary C Legg

    if nobody wanted it-then why the heck did CafePress take it? your argument is grossly illogical. Obviously CafePress wanted it or it would have taken different image. duh? Photographers deserve payment on work- taxis don’t ferry folks around free, metros have tickets, pizza comes with price, etc. Why shuold photographers be constantly be cheated of payment due? And they pay all the expenses involved from sensor cleaning to lens repair to travel, etc. It’s damn expepensive to produce an image. If CafePress or nobody wanted it, WTF take it?

  • Rob Elliott

    you really should read all the sub conversation before jumping in 9 months late.