Getty v. Microsoft: Flagrant Infringement or a New Fair Use Frontier?

By Elena Kravtsoff, Esq.

On September 4, 2014, Getty Images, Inc. [Getty] filed a lawsuit in the Southern District Court of New York against Microsoft Corporation [Microsoft] over the Bing Image Widget, whose beta version was released less than two weeks earlier. The lawsuit seeks to “enjoin Defendant Microsoft from infringing and facilitating the massive infringement of Plaintiff’s copyrights through [the Widget].” In its complaint, Getty describes itself as “one of the world's largest providers of commercial visual content and the leading provider of commercial images online, representing more than eighty million unique works of digital imagery.” According to Getty, the Widget allows website publishers to display images collected by the Bing Image Search without attribution of, much less the permission of the copyright owners. Moreover, says Getty, the Widget financially benefits Microsoft by promoting the Bing Search Engine. As discussed below, Microsoft adamantly disagrees. The parties exchanged a flurry of briefs in September and October. As of the date of this blog’s publication, Getty’s motion for a preliminary injunction has been denied since the court was satisfied that Microsoft disabled the Widget and indicated that it does not intend to re-launch it, and the court’s decision on Microsoft’s motion to dismiss remains to be seen.

The Bing Image Widget is no longer publically available, but based on common denominators in Getty’s and Microsoft’s descriptions of the service, the Widget is a snippet of code that an individual building a website can program into his or her webpage. The website builder then runs an image search, and images responsive to his or her query (found through Microsoft’s Bing Search Engine) are displayed through the Widget, in either a collage or a slideshow format. Thumbnail images for the collage format are pulled directly from the image copies saved by the Bing Search Engine and stored on Microsoft’s servers. Images displayed in the slideshow view are funneled through the Widget from the websites that host them and are not copied or stored by Microsoft. Screenshots of the collage and slideshow displays are available in both parties’ pleadings.

Getty and Microsoft’s consensus on what the Widget is and what is does ends with this basic description. According to Getty, Microsoft infringes on Getty’s exclusive rights to reproduce and publically display copyrighted works that are allotted to it by 17 U.S.C. § 106(1), (5). Microsoft, Getty argues, advertises to publishers that the image display powered by the Widget “enhances your web site… and provides your users with beautiful, configurable image galleries and slideshows.” Getty explains that it itself offers an “Embed” feature, which allows non-commercials users to display millions of Getty’s images on their website for free. Notably, when users populate their websites with images through Getty’s “Embed” feature—which, like the Widget, is a snippet of code—the images are automatically attributed and link to Getty’s website, allowing individuals to license the images for commercial use. Getty agues that the Bing Image Widget is similar to the “Embed” feature, but that instead of properly attributing the images, it boasts Bing’s logo, and, at least in the collage view, it directs users to the Bing Search Engine, rather than the copyright owner’s site. Getty argues that Microsoft and Widget users benefit through the Widget’s unauthorized display of images, while Getty suffers financial harm as its images are being illegally used without appropriate compensation to Getty or its clients. Getty states that since the Widget utilizes the images pulled by the Bing Search Engine, “Defendant has turned the entirety of the world's online images into little more than a vast, unlicensed 'clip art' collection for the benefit of those website publishers who implement the Bing Image Widget, all without seeking permission from the owners of copyrights in those images.”