Too Big to Sue: Why Getty Images Isn’t Pursuing a Copyright Case Against Google in the U.S.

May 17, 2016

By Interview Conor Risch

Getty Images announced three weeks ago that they had filed an unfair competition complaint against Google Inc. in Europe, where a commission is scrutinizing Google’s business practices. The complaint addressed Google image search, which displays large-format images in search results. Google changed its image search platform to display large images, rather than just thumbnails, in 2013, and Getty says they’ve seen their referrals from Google search plummet as a result.

Despite feeling that Google Images is violating their rights, those of their contributing photographers, and those of their customers, who pay to license and display images, Getty has chosen not to sue Google in the U.S. courts. PDN reached out to Getty Images to ask why not. Getty Images General Counsel Yoko Miyashita and VP, General Counsel Lisa Willmer explained Getty’s position during a conference call with PDN that also included Getty Communications Manager Kelly Goucher. Here’s what they said:

PDN: If you feel Google is violating the rights of Getty Images, why don’t you sue them in the United States, where both companies are based?

Yoko Miyashita: Differentiating between the complaint we’ve brought in the EU versus all the other potential options is important. We brought this competition complaint in Europe as there was an ongoing investigation [there]. A trade organization for image companies in Europe had already brought their own complaint in ’14 and we had already been a part of that. We’ve been watching that closely. And considering all of the other issues going on with Google, we felt it was important to chime in with this particular issue that relates to scraping of content.

Now, in terms of the U.S. side, there was an investigation of Google [by the Federal Trade Commission], and they closed that at the start of ’13. Three weeks after that, the changes happened to Google Images and those are the issues that we have particular concerns with, in terms of presentation of large-format images within Google Image search. These [issues] transcend geographic borders and we’ve certainly been having conversations on the U.S. side, again approaching the FTC as well as speaking with legislators about our concerns here.

Given the size of Google versus Getty, a lawsuit on particular copyright issues—you know how that would go. That’s years and years of time. Plus, the ability for them to really use the courts to draw this out and potentially wipe us out from a cash perspective, just doesn’t make that practical for us from a U.S. perspective.

PDN: So it would have to be pursued by a federal agency as an antitrust case rather than a copyright case?

YM: That’s the issue, and this is the key distinction that we’re trying to make: Are there copyright issues? Yes. But the problem is not just copyright. It’s their market dominance and their position in search where they can circumvent any of the copyright protections that legislatures or courts may provide. I’ll use Germany and Spain as examples of why this is not just a copyright issue. They enacted specific legislation to protect publishers in those countries, where they said under copyright, use of news snippets would require compensation. So you get copyright protections in place but Google, what they were able to do is say, “Fine, if you’ve got this copyright remedy we’re just going to exclude you from search.” Nobody can really afford to erase themselves off the web, so they were forced to opt back into the Google scraping scheme, with no compensation. This is not just a copyright issue; we’re really focused on the impacts and those business practices from a competitive standpoint.

PDN: Have previous copyright cases against search engines—such as Kelly vs. Arriba Soft Corp. [which found that display of thumbnail images in search was fair use] and Authors Guild, Inc. v. Google, Inc. [which was also dismissed on fair use grounds]—created an unfavorable climate in the U.S. for copyright suits against Google?

Lisa Willmer: I think if we were to have brought this as a copyright infringement lawsuit against Google in the U.S. it would have been very challenging.

YM: We don’t have an issue with search. You’ve got those cases you just mentioned that are speaking from a policy perspective to protect search and its public benefits. But Kelly versus Arriba Soft, you’re looking at thumbnails, meaning when images shown in search are used as a referral or a locator to the original source. When you go from thumbnail presentation to large format, it’s become completely substitutional. It used to be thumbnails to take you to the origination of that content. It’s now become thumbnails to image galleries [displayed within Google Images]. Something went off the rails there.

PDN: How has Getty been pursuing this with U.S. regulators? When the U.S. Copyright office was seeking comments from photographers and other visual artists last year, did Getty Inc. voice concerns then?

LW: We did, we filed comments with the Copyright Office on the study for Visual Works. And then we’ve also been involved in the study that they’re undertaking now with section 512 for the DMCA [Digital Millennium Copyright Act; the study is evaluating the effectiveness of the “system for copyright owners and online entities to address online infringement” established in 1998]. So we’re continuing to lobby for changes in copyright law that would put us in a better position here and enable photographers to ensure that they can continue to make a living off of licensing their photographs.

PDN: When Getty announced the complaint filed in the EU, PDN reached out to Google for comment and a spokesperson referred us to a statement they made to search industry news site Search Engine Land in 2013, right after the new Google Images launched. The statement from Google read:

“As we’ve noted before, there are no more phantom visits and actual CTR [clickthrough rate] to webmaster pages, i.e. real traffic, is up 25%, so real visits are up. As you know, we doubled the way users can reach the host website.”

What does Getty Images data say about the effect the changes to Google Image search have had on referral traffic?

YM: That Search Engine Land article refers to the study done by Define Media Group. It is eerily identical to what we were experiencing. You have this healthy trajectory of referrals from Google Images, and you see the cliff, the drop-off…. I think they will sit and talk about the phantom traffic or the perception of lost traffic, but we are just one of the publishers out there who are standing up to say this is real, this really happened, and this has been the impact.

LW: Part of their defense is that they added more links to the site [where the image was originally published], but the problem is they took away the only one that mattered, which is what happens when you click on the image. Now, when you click on the image it no longer takes you straight to the source site; instead it takes you to an image gallery where you’re still captive in their environment.

YM: What I would also share is that they didn’t make this format change in Germany, both for legislative and political reasons. And what you see is the exact opposite behavior… you see the continued increase in traffic [to Getty Images] being referred from Google Images. We’ve had this natural experiment, where you implement the change on one site but don’t do it in another territory. One where you didn’t make the change and traffic continues to grow and one where you did it drops off like a cliff. That’s what we’ve seen.

PDN: So from your perspective, changes made to Google Images in 2013 were about keeping people in the Google ecosystem?

YM: It is absolutely about keeping people. In that FTC staff memo that was leaked by the Wall Street Journal last fall, you’ve got internal documents from Google product managers talking about the risks inherent in losing people to competing verticals. That user traffic, that search, all of the follow-on search, that time and engagement on Google Images is so important to continuing their dominance in the whole paid search world, and [for] the paid advertising that happens on Google.

LW: It also gives them, and only them, data on what people are searching for. So they do get to monetize all that through advertisements because they know what people are looking for.

YM: And think about: they’re the ones monetizing all of that traffic and user engagement. We’re a competing images search engine. Search engines thrive on queries, follow-on queries and all of that engagement data to continue to improve and smarten up the algorithms. We have customers who pay us significant licensing fees to have the rights to display these images. They’re wholly dependent on that traffic to generate the advertising revenue that’s required to pay for the images they license from us. To me, its an underlying fairness issue. All of these publishers pay for the rights to display these picture galleries and Google has done it for free. It’s really hard to compete against a zero-cost competitor.

PDN: What else is Getty Images planning to do to pursue this?

YM: We’ve now petitioned the EU and we’ll be continuing to make noise and look for those opportunities in other jurisdictions, but we’re looking for behavioral changes. Whether that’s through direct conversations with Google—which we always welcome—or whether that needs to come through a regulator, we’re really looking to address this issue. It’s not just a Getty issue, it’s impacting creatives around the world.

PDN: It sounds from our conversation that the most likely way forward is through a regulatory body. Is that how Getty feels?

LW: We’re going to continue to put pressure [on] every way that we possibly can, and we’re open to whichever solution bears fruit.

Update: Obama Administration Calls for Copyright Small Claims Courts, Embraces “Vibrant Fair Use”
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