The court ruling is a victory for the photographer but will do little to clear up a brewing legal storm over who has a right to photos posted on social media. Consider the ironic mess we’re in: on one hand, news companies depend on Twitter and other sites for news pics — but on the other hand, they sue if other people use their own photos.

Here’s a plain English explanation of the court case and how it relates to the larger trouble with copyright laws in the age of social media.

No, you can’t just have those photos from Twitter

When a devastating earthquake hit Haiti in 2010, news agency AFP turned to Twitter and discovered a user’s “exclusive photos” of the disaster. AFP took those photos and shared them with photo service Getty. The Washington Post then took the photos from Getty and published them on its website.

There was a problem, though. The user who claimed to have the “exclusive photos” had taken them from another Twitter user who was the actual photographer. This meant that Getty and the Post published photos without permission and with the wrong attribution.

When the photographer sued the news agencies, they responded by saying that his decision to put the photos on Twitter amounted to granting a public license for anyone to use. The argument isn’t as far-fetched as it sounds. Consider what happens when I see your photo on Twitter and retweet it — I’m taking your work and republishing it. Is it so different if the Washington Post does the same thing? The court seemed to think so. Here’s the key passage:

The judge’s conclusion led her to grant summary judgment against the AFP and the Post which means they now must pay up to $150,000 for each photograph. (The case against Getty goes on — see the marked up copy of the ruling below for details).

The court ruling solves nothing

The fight over the Haiti photos has received a lot of attention because it involved a natural disaster and a David vs Goliath storyline. But the reality is that, in the age of photo sharing, these sort of photo disputes are blowing up all over. As my colleague Mathew Ingram explained last week, a dispute between BuzzFeed and Reddit over photos is just the tip of the iceberg due to a web “remix culture” that makes image reproduction easier than ever.

This tension over photographs is only going to grow as smartphones spread and people post more pictures online. Meanwhile, social media images are becoming ever more essential to news reporting. This week, for instance, British newspapers all relied on a user’s Twitter photo to report on a London helicopter crash.

This situation means news agencies will keep finding themselves on both sides of the copyright debate. Getty, for instance, is not just a defendant in the Twitter case. It is also making major money by combing the web for people who use its images without permission — and then extracting expensive legal settlements.

There is no easy solution to this copyright mess. One suggestion is a universal licensing scheme that provides a guaranteed payment, or at least an acknowledgment, to people who happen to be in the right time and place to take an important photo. A more likely outcome is that companies will continue to press courts to push the bounds of fair use ever outward or, as in the recent Instagram debacle, consider changing their terms of service in order to strip user rights to photos in the first place.

Twitter pic opinion by

(Image by Lisa A via Shutterstock)

Photos everywhere mean more places for creativity and beauty — but not everyone is happy. Professional photographers are furious when they see people help themselves to their work without payment or permission. Why should these people use someone else’s labor for free?

It’s a fair point. Unfortunately, though, the solution to unlicensed images has often proved worse than the problem itself. As photos spread across the internet, bands of lawyers are springing up who offer themselves as hired-gun enforcers to image owners. When they find a target, they squeeze them for thousands of dollars and take a cut of the loot.

This is not some rare example. Major image owners like Getty possess image recognition software that lets them quickly detect unauthorized use of their images. The legal settlements they collect have become a major source of revenue.

So what’s wrong with this approach? After all, image owners have the copryight and users should know better. The problem is that, in most cases, there’s little connection between the harm and the damages. When a blog or a small business or a Tumblr user posts a picture, they don’t deprive the owner of thousands of dollars but are simply using an image that could, in most cases, be replaced with many others.

The culprits in these cases are usually careless or ignorant yet they are treated as willful criminals. The approach of Getty and others reflects the mistakes of the music industry in response to MP3s — failing to distinguish between average fans and professional pirates, and embittering a whole generation of users.

That’s why the copyright perspective of micro-stock agency Dreamstime is so much more sensible. Unlike other image owners, Dreamstime does not sic lawyers on people who like its photos. Instead the company, which claims to have more than 5 million users, responds by sending them a notice to take the image down or else to buy a license at the going rate which can be as low as $8.

According to CEO Serban Enache, this approach actually leads to better business.

“We want to respond to copyrighted images but we want to do it in a different, non-heavy-handed way,” said Enache in a recent phone interview. “This is very successful way of turning unauthorized users into customers. Once they learn of the license, they often obtain larger licenses.”

Meanwhile a Getty spokesperson said the company is not considering such an approach: “The DMCA [copyright] takedown process is not an adequate remedy by itself because it does not ensure that our photographers receive compensation for use of their images.”

This perspective seems misguided. While professional pirates deprive creators of their due, the typical photo infringer is not taking money from photographers’ pockets — they would never have received that money in the first place (I suspect that most of the money Getty collects goes to the company and lawyers, not to the photographers).

Finally, the reality is that photos aren’t worth what they used to be. We’re no longer in the days of darkrooms but instead live in a world where everyone has a camera all the time. Photos are increasingly more commodity than art.

The point is that, in the age of Instagram, Getty and others should save their big guns for the real bad guys and start treating casual infringers as potential customers rather than hardened criminals.

(Image by PLRANG via Shutterstock)

And now that repository is about to pay off for some of SoundCloud’s 20 million users. SoundCloud has just signed a deal with Getty Images that will make it possible for those users to license their sounds to anyone who’s willing to pay – most likely advertisers and other creatives. (Hear more about the future of SoundCloud from CEO Alex Ljung at our RoadMap conference on November 5th in San Francisco).

“SoundCloud’s partnership with Getty Images Music creates a powerful offering to our community of professional and casual creators,” Ljung said in a statement. “Now through Getty Images Music, songwriters and audio creators can broaden their exposure and potentially monetize sounds they’ve shared on SoundCloud.”

The system will be quite straightforward: each user will be able to install a ‘license’ button from Getty Images Music on their SoundCloud players, for tracks that they want to monetize. Those who want to license the track just click the button and send a request.

Beyond that, depending on how much contact information the SoundCloud user has provided, and whether or not they’ve already sent a tax form to Getty, it will take between a few days and a few weeks for the track to become available.

Getty’s rate card details how usage in web or mobile advertising will cost $350, inclusion in corporate marketing will cost $1500, and so on. The creator gets “35 percent of the upfront licensee fee plus 50 percent of Getty Images’ share, as publisher, of any backend performance royalties”.

And what if the user’s sounds get used in something that’s broadcast? Depending on what type of licensing that’s been chosen by the user, Getty registers the track with performing rights organizations and administers the royalties – 100 percent of the ‘writer’s share’ goes to the creator, along with 50 percent of the ‘publishing share’.

Funnily enough, I’d noted before that Getty was sniffing around the Berlin scene, but I’d assumed that the fruits of that interest would be seen first in a collaboration with an image-centric service, probably EyeEm.

SoundCloud is the pioneer and leader in what it does, i.e. being a YouTube for audio. It’s wildly popular, but its monetization strategies appear limited. Audio-player deals and those pro-account subscriptions can only take the firm so far.

Unfortunately, this is still not a new monetization strategy. SoundCloud doesn’t take a cut, nor does it require users to be paid-up members in order to take advantage of the licensing service.

That means it remains possible that SoundCloud will adopt audio advertising, which is something I feel would drive away many users – particularly as SoundCloud does not tend to offer the same kind of continuous listening experience found in the likes of Spotify.

UPDATE: I originally got the wrong end of the stick regarding SoundCloud taking a cut of the licensing fees. To misquote Obi-Wan, this was not the monetization strategy I was looking for.

The company had been carefully experimenting with subscription formats for the past year, Klein said. Getty (NYSE: GYI) had used its Creative Express offerings as a way to test consumer attitudes about subscription images. The result of that test will be demonstrated this week. The first of the new subscription tiers will include monthly and annual subscription rates. A monthly subscription will cost $249 and users will be limited to 25 downloads per day or 750 for the whole month.

Later on, Getty will release multiple image packages starting at $59. “We learned a number of things this past year about what subscribers will pay for,” Klein said. “In addition to price, which is the most important, subscribers want breadth and depth. They want constant updating of images and something to fit every conceivable category. This new subscription service brings together 3.5 million images. And we plan on building that up quickly.”

In addition to the subscription end, Getty is still focused on the individual sales through iStock, which Klein said did $200 million in revenue last year. “Even though iStock is a user-gen site, it has no ad support, it’s all e-commerce,” Klein noted. “Also, this is not an exaggeration: iStock sells a licensed user-gen image every second of every day. The subscription business is a good complement. We don’t see it negating that at all.”

While iStock is continuing to make strides, Getty is still wrestling with ways to make money from mobile. Klein sees potential there, but “nothing immediate.” The company used to sell a lot of background images, but with the ubiquity of camera phones, most consumers prefer to add their own images. In the meantime, Getty considers gaming to be a particularly lucrative area. “The gaming space continues to grow and developers have an insatiable appetite for images,” he said. “We expect that to be a more promising segment of our business this year.”

The pair have cross-promoted and sold each others’ still images for years — and AFP says it’s an opportunity to build its online video revenue, which it claims is already in double digits. Getty’s coverage of sports and red carpet awards ceremonies will add another element to AFP’s traditional weighty news coverage from world capitals and warzones, which is produced from 40 offices across the globe and broadcast in seven languages. Release.

The site, which is being sponsored entirely by Rolex for its first month, is organized along 1,000 galleries. “Curation” is Life.com’s philosophy. Blau sought to emphasize that the stress would be on professional photographers and content; the only real user-generated involvement would be celebrity curators like talk-show host Ellen DeGeneres. As for Life’s other partnership with Google (NSDQ: GOOG), an image archive launched in November, Blau also notes the key differences. “Google’s about image storing,” he said. “Life.com is about image finding… We deliberately wanted to make sure that this wouldn’t be seen as an ‘archival’ site. The photos are updated constantly and reflect the news, such as the recent flood fears on the Midwest. It draws back to what the magazine originally was: capturing what was happening, but through photos, not text.”

While other sites struggle with paid content, Blau and company have that issue nailed down as well. The site will make most of its money from advertising — in addition to sponsorships like Rolex, within the next three to six months Blau wants to have galleries that are specially sponsored by marketers. It will also have a major e-commerce function, whereby users create their own photo books from site images and then order them online.

The buzz about “citizen journalism” may have died down since its height in 2005, but it’s not as if the potential has gone away – every week, mere platforms like Twitter, initiatives like iReport and newsdesks like that at BBC News get newsworthy images and stories across their bow. But perhaps those armed with cameras on our streets are sharing their photos directly with outlets like these, rather than formal “citizen journalism” projects.

So Getty is closing this chapter: “We remain convinced that there is a demand for this kind of material as part of an editorial product, but for the moment are choosing to focus our energies within Getty Images on our core products in news, sport and entertainment.” All photo rights will revert to creators but Getty will offer to buy rights to a few of the best images. Email to members follows (via Stock Photo blog)…

Dear Scoopt members,
I am sorry to inform you, as a member of Scoopt, that we have decided to close the business. We will not be taking in any more imagery after February 6, 2009 and will close the upload application. We will also cease licensing any imagery through Scoopt on that date.

Our experience with Scoopt has taught us some very valuable lessons. We remain convinced that there is a demand for this kind of material as part of an editorial product, but for the moment are choosing to focus our energies within Getty Images on our core products in news, sport and entertainment.

It has been a pleasure working with Scoopt, your pictures have provided a fascinating snapshot of the circumstances in which you find yourselves and have added valuable viewpoints to the news service we provide our customers on a daily basis.

A holding page will remain until March 6, 2009 but from February 6 we will not be accepting any new imagery and so the upload path will be closed, and the galleries shut down, at which point all rights over the photos revert to you, the copyright holders.

All Scoopt content that also appears on Getty Images will initially be reviewed and any Scoopt member that has photos deemed to have longer term value on Getty Images will be offered a separate contract. To be clear, on February 6, 2009 all Scoopt content will be taken down from the Getty Images website and only be reposted, once the relevant contractual relationship with individual photographers is in place.

If your material is selected for continued inclusion on Getty Images, you will be contacted directly. We will be posting some FAQ

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