Getty Images Goes Copyright Trolling After A Meme Penguin

from the talk-about-socially-awkard dept

Getty Images has a bit of a reputation for being a ridiculous copyright troll at times — sending out threatening letters demanding large sums to “settle” for people who use an image from Getty’s database. But, now, it appears to have taken the trolling to a new level, as the German blog revealed last week when it reported that Getty had demanded nearly $1,000 for one year’s use of an image of a penguin that is actually part of a semi-popular meme, better known as the Socially Awkward Penguin.

If you’re unaware, the Socially Awkward Penguin usually looks something like this:

Or, more specifically, it looks like that with words above and below it detailing a socially awkward situation. For example:
Okay, maybe not the greatest meme, but, you know, it’s an internet meme.

The issue is that the penguin itself was sort of plucked from a photograph taken by George Mobley for National Geographic, seen here in thumbnail form:

Getty holds the rights on the image, and apparently has decided to go trolling on it. GetDigital actually agreed to pay up and remove the image… but was also told that it couldn’t tell anyone about this, and apparently decided to give a giant middle finger to Getty by posting all about it — leading to fairly widespread press attention about the fact that Getty is apparently so desperate in its copyright trolling that it’s now going after memes.

In response, GetDigital has now released an alternative version of the Socially Awkward Penguin based on a penguin that Getty can’t troll over:

It’s even been added to Meme Generator in case you’d like to make your own.

Of course, this whole thing is particularly stupid and makes Getty look absolutely ridiculous (once again). Chances are there would be a strong fair use defense in the US, but the shakedown above is happening in Germany, which doesn’t have a similarly codified fair use concept. But, even so, it just makes Getty look desperate. Even worse, when approached by the Daily Dot about this, rather than admit it had fucked up, Getty Images doubled down:

?We believe in protecting copyright and the livelihoods of photographers and other artists who rely on licensing to earn a living and fund the creation of new works,? a Getty spokesperson wrote. ?Getty Images has an immense responsibility to the 200,000+ artists we work with to ensure that their work is properly licensed when used by commercial entities. Bear in mind that many artists themselves are small businesses, and are entitled to be paid for their work.?

Getty added that it ?understand[s] that people love our imagery and want to share it in a personal capacity with their online audiences.? But to do so without triggering a copyright claim, Getty recommends that Internet users take advantage of the company?s image-embed tool, which the company launched last year.

Nearly the entire statement is bullshit. Getty has no “responsibility” (immense or otherwise) to shakedown blogs using a semi-popular meme. Doing so is not about protecting copyright or protecting the livelihood of photographers. It’s just shaking down a blog. No one is using this meme because of the photograph itself, and as can be seen by the alternative version, there’s nothing special about this penguin that makes it especially necessary for this meme. It’s just a crazy meme that got popular on the internet, not because of Getty and not because of George Mobley.

As for the whole thing about Getty’s image-embed tool, we wrote about that last year when it came out — and we were happy that Getty appeared to be embracing the internet, rather than just copyright trolling, but this response is pure bullshit, because the socially awkward penguin image is not available via Getty, because that image is not the meme. So that response makes absolutely no sense at all.

Meanwhile, the Socially Awkward Penguin meme itself had more or less become obscure after going through its rise and fall in popularity. However, this shakedown by Getty appears to be leading to a resurgence of the meme. Perhaps that’s really what Getty wanted all along.

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Companies: getty, getty images

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Comments on “Getty Images Goes Copyright Trolling After A Meme Penguin”

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nasch (profile) says:

What, then?

I don’t want to come across as a resident TechDirt troll… should Getty Images just let anyone use their images for free without doing anything about it? Totally change their business to not rely on copyright*? Charge less? Only go after unpopular images? I can tell you don’t like this, and probably nobody does, but what should they be doing instead?

* doesn’t sound like a bad idea but it’s much easier said than done for an established business

nasch (profile) says:

Re: Re: What, then?

can Getty prove that their image was the one from which the Socially Awkward Penguin was derived, or did it comes from several images with birds in very similar poses.

Great question. That might be very hard to prove, but unfortunately in the US that’s little help to someone facing legal action unless they have a lot of money.

PaulT (profile) says:

Re: What, then?

“should Getty Images just let anyone use their images for free without doing anything about it?”

If the usage falls under reasonable fair use and has been done for zero profit motive, sure. Doubly so, if the meme was unlikely to have harmed the market for the original, as would appear to be the case here.

“I can tell you don’t like this, and probably nobody does, but what should they be doing instead?”

Well, in this particular case, “nothing” would be a good idea. I don’t see any evidence that their business was being harmed, nobody was buying copies of the meme instead of their own image, and I don’t see any reason to think that the people sharing the image had any profit motive.

Then again, I don’t have full details of their business model nor their legal dealings, so it’s possible that their attempts to extort people for licence fees was lucrative. But, they must know how bad it looks, else why the gag orders?

nasch (profile) says:

Re: Re: What, then?

If the usage falls under reasonable fair use and has been done for zero profit motive, sure.

Let’s see.

1. Purpose and character – could go either way
2. Nature of the work – it’s published and would be considered factual so this would weigh towards fair use
3. Amount of work copied – in this case I would say since the subject of the photo was copied that would tend against fair use
4. Effect on the market – hard to say

You could argue that there is no effect on the market because nobody would have bought the image to make their own penguin meme. On the other hand, from Getty’s perspective they don’t want to set up an expectation that it’s OK to use their images for free if you weren’t planning to pay for one anyway. It seems likely a fair use defense would prevail but I don’t know that it’s completely obvious.

I’m kind of surprised stock image companies are even surviving these days actually. If they’re not already doing this I wonder if it would work to offer some images for free and charge for others. Make your site a useful resource to people even if they don’t want to pay so they’ll spread the word, and help make you the place to go to get images. And some people will buy them. Sounds like a tough business to be in these days.

Zonker says:

Re: What, then?

What Getty could have done was not miss the opportunity to promote sales of their penguin photo by riding on the popularity of the meme. Could have had at least a few thousand and possibly a whole lot more sales out of it if they advertised it well enough.

But instead they had to shoot the photographer in the foot and damage his reputation to anyone online who has heard of this meme, damaging any future prospects for sales or work-for-hire with anyone who knows about the copyright crackdown.

What a shame.

Anonymous Coward says:

What I have a problem with is the “pay up or we will sue you” aspect.

It’s extortion, legalized.
“I’d hate for your wallet to be empty, but if you give me say $1000 I’ll let you keep the rest of your money”

I would be 100% OK if they did their trolling like this:
1. Identify the infringer
2. File lawsuit against the infringer
3. Negotiate a settlement
4. Dismiss the lawsuit

It’s not OK that they troll like this:
1. Send letter demanding money and threaten to sue
2. Sometimes sue, sometimes do nothing and other time collect settlements.

I would even be on with:
1. Identify the infringer
2. Send threat/settlement offer letter
3. Collect settlement or file lawsuit ( follow through with the threat )

I’ve been the recipient of one of these threat letters ( from a Getty competitor )
The law is unfair when my options are:
A) Spend lots of money on a lawyer to defend myself
B) ignore it and hope they don’t sue
C) negotiate a settlement

I choose B and two weeks before the statute of limitations expired they pop up again and I changed to option C.

When it cost more to defend yourself than it does to settle and the trolls are allowed to take advantage of that fact, the law is unfair. That’s the problem here.

Prisoner 201 says:

Re: Re: Re:

Not suing means that they do not think they have a strong enough case, i.e. it’s not commercial use, or not infringing (fair use) etc.

Sending out threat letters and not going through with the threat smells like a fishing expedition rather than a legitimate complaint.

Send out thousands of questionable copyright threats, 5% will pay up with no questions asked, that’s a nice profit for sending a bunch of emails.

nasch (profile) says:

Re: Re: Re: Re:

Not suing means that they do not think they have a strong enough case, i.e. it’s not commercial use, or not infringing (fair use) etc.

Good point. I wonder what the effect would be if it were illegal to threaten to sue. If your only option were to actually file a lawsuit which could then be dropped easily if there were a settlement, none of these copyright/patent shakedowns could happen. But what would be the unintended consequences?

Atkray (profile) says:

But what about the artists!?!?!

Now we know that anything by George Mobley could be tied to Getty, so people that read this story instead of thinking of him being an awesome photographer and all around swell guy, will think he is money grubbing and sue happy and will just move on to someone perceived to be friendlier.

Way to help out the artists Getty.

Oh well, lie down with dogs…….

PaulT (profile) says:

Re: Sad little man

Is than better or worse than having so little going on in your life, that you have to just into a thread that’s been dead for nearly 3 years and attacking a man you’ll never meet with the maturity of a small child?

This is one of the reasons I always subscribe to threads I’ve contributed to, you never know what tiny impotent rage is going to be launched in threads that died years ago by people who have nothing better to do than rage over things that were settled before they touched the keyboard – now, there’s a sad little man!

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