
Photographer Suing Getty Images for $1B - iamben
http://petapixel.com/2016/07/27/photographer-suing-getty-images-1-billion/
======
Smushman
Using some examples from the comments of the article:

It's akin to Getty setting up a small tent inside of Central Park, and asking
people that walk by to pay an entry fee.

But Getty goes 1 step further: They hire strongarm guys to go around the park
and tell people (one-on-one) that they skipped out on their 5 dollar entry fee
and they can 'settle' with them right now or be taken to court.

It's terrible.

I can't imagine how to solve that without a total change of copyright laws,
other than scare the bejesus out of them. Which seems to be exactly what the
photographer is doing.

~~~
legohead
Don't know why this needs an analogy at all.

Getty [allegedly] took images that didn't necessarily belong to them, charged
for them, and also sent copyright notices after anyone that hadn't paid for
them.

It's pretty simple. edit: allegedly

~~~
dperfect
The issue isn't really with Getty charging for those images. If they're in the
public domain, then (as I understand it) the photographer has relinquished her
copyright on the images. It's perfectly legal for other people to make money
with them in that case, but that doesn't mean those other people own the
copyright.

I think the issue comes into play when Getty tries to _enforce a copyright
they don 't actually own_ by threatening people who use the images. That's
where they've crossed a line, and I'm fairly confident that if Getty tried to
sue anyone over it, the courts would decide in favor of the defendants. Of
course, just defending oneself in court against someone like Getty could get
expensive, so it's obviously better if the issue could be sorted out
preemptively (as this photographer seems to be doing).

~~~
Natsu
From other sources, she licensed them for free use with attribution, she
didn't abandon the copyright.

~~~
dperfect
If that's true, then either the Library of Congress didn't get the memo (they
very clearly specify that it's in the public domain), or this is somehow a
case where "public domain" means something different from the standard
definition.

~~~
Natsu
It's possible they mislabeled it, but one would think they were still on the
hook if they sent any DMCA notices, as they should not have any reason to
believe that they were the copyright holders or in any way authorized to sue
for "infringement" of the works... particularly when sending notices to the
_actual_ copyright holder.

------
Animats
Read the court filing. She can win this.

She owns the rights to the images. She licensed the Library of Congress to
distribute them for free, but did not release them into the public domain.

Getty is selling her images. That's a for-profit DMCA violation. The statutory
penalty applies, which is from $750 per image to $30,000 per image. She makes
a case that the higher end of the scale should apply, because some of her
images are quite famous. Two have appeared on US stamps, for example.

Getty recently lost a DMCA case for doing something similar. That makes this a
second offense and triggers the triple damages provision in the DMCA. So, as a
matter of law, she is entitled to at least 18,755 * $750 * 3, or about $42
million. That's a minimum.

~~~
dperfect
> ...did not release them into the public domain

This is incorrect. According to the Library of Congress:

"Ms. Highsmith has stipulated that her photographs are in the public domain."
[1]

[1]
[http://www.loc.gov/rr/print/res/482_high.html](http://www.loc.gov/rr/print/res/482_high.html)

~~~
mdpopescu
It's not possible to renounce copyrights in the US; they're inalienable
rights. The only way to get something in the public domain is for the
copyright term to pass... and even then there are problems (see the Sherlock
Holmes saga).

~~~
E6300
I don't think this is actually true. Can you cite any sources referring to
copyright as inalienable in the US?

~~~
mdpopescu
My bad. In the first place, what I meant is that you can't give up copyright -
you can't say "this work is in the public domain". (Or rather, you can, but
there's nothing legally preventing you from saying a year later "I changed my
mind".) See
[http://www.rosenlaw.com/lj16.htm](http://www.rosenlaw.com/lj16.htm)

However, "inalienable" was incorrect - you can most definitely _sell_ your
copyright.

Second, apparently I was wrong even then: see
[https://cr.yp.to/publicdomain.html](https://cr.yp.to/publicdomain.html)

Face, meet egg.

~~~
imajes
just to clarify because i think you sort of said you were wrong but i'm not
entirely sure...

if i read 17 U.S. Code § 201 (d) clearly, it suggests you can transfer
ownership of copyright in any normal legal way of executing a contract.

I think your confusion is around the idea of works _falling_ into the public
domain via expiry of copyright, and/or works that do not have an explicit
declaration of rights ownership.

In this case it seems she was pretty clear about her transfer of ownership. I
don't believe you can rescind that just as you prefer, at any time.

see
[https://www.law.cornell.edu/uscode/text/17/201](https://www.law.cornell.edu/uscode/text/17/201)

------
pavel_lishin
While $1B seems excessive, and more of a number to make a point, it does seem
outrageously egregious to send her a bill for her own photo on her own website
that she donated for public use.

It would be like coming home to find a naked vagrant sitting on your couch,
demanding that you pay him rent.

~~~
dublinben
It's likely that Getty have also fraudulently charged many other customers
licenses for these photos. It's not inconceivable that each of them could
individually sue Getty for their own damages. This looks like it could become
a very expensive case of sloppy (or deliberately negligent) copyright
overreach.

~~~
morninj
Nit: by definition, negligence can't be deliberate.

Edit: "negligence" means you should have known of the risk. "Recklessness"
means you knew of the risk but acted anyway.

~~~
dragonwriter
> Edit: "negligence" means you should have known of the risk. "Recklessness"
> means you knew of the risk but acted anyway.

No, "negligence", in law, means you failed to act according to the duty of
care you owed, which can include knowing about a risk but failing to act
reasonably to mitigate it as much as it can include not knowing about a risk
that one reasonably should have known about.

Negligence and recklessness are not mutually exclusive

~~~
morninj
I'm not sure which law school taught you that, but it's just wrong. Here's a
law review article that discusses the differences in mental state between
negligence and recklessness:
[http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=...](http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1561&context=dlj)

~~~
ABCLAW
Negligence is a stand-alone tort/cause of action in civil litigation, as well
as a qualifier for intention-based infractions in criminal law. The two
meanings to the term are connected, but do not overlap 1:1.

The poster above you is correct as to the test for negligence in civil causes
of action.

The likely cause of this mix-up is that false-licensing touches upon the law
of misrepresentation, which contains as a subset, rules for both fraudulent
misrepresentation as well as negligent misrepresentation.

------
vvanders
Ars has some good coverage of this as well: [http://arstechnica.com/tech-
policy/2016/07/photographer-sues...](http://arstechnica.com/tech-
policy/2016/07/photographer-sues-getty-images-for-selling-photos-she-donated-
to-public/)

> Lochting also underscored that LCS and Getty Images are "separate entities
> and have no operational relationship."

> However, DNS records show that LCS' listed address is 605 5th Avenue South,
> Suite 400 Seattle, Washington, which is Getty Images' corporate address, a
> fact that she would not explain to Ars.

> "It’s a no comment in response to your follow up questions," Lochting
> e-mailed.

------
mortenjorck
I’m seeing lots of analogies here, but are they really necessary? A rights
company notorious for fiercely defending its own copyrights flagrantly
violates those of a photographer, appropriating and then aggressively
defending illegitimate copyright over her work. Is this not a straightforward
enough situation to explain without the overhead of analogy-making?

------
tmd83
This is beyond shameless but I'm not surprised that this happens. Big players
of copyright seems be doing this sort of thing all the time and getting away
with it.

This comes from the same mindset that allow a original video by the author to
be put off youtube by a big studio.

I think I read that big recording studios similarly uses lesser known artists
songs in records under some weird law (pretending they couldn't find the
copyright holder) and basically strongarm them if they come out and complaint.
Does anyone know if its true and provide reference?

Essentially the legal system worldover is extremely for the power broker. The
ones who needs the least protection gets the most and those that need it in
most cases cannot even afford the least.

~~~
cookiecaper
Yes. This is becoming ever-more-salient as large portions of the programming
that airs on multi-national news organizations comprises original content
posted to social media and owned by the user that originally authored it. Just
in the last month we have Nice, Dallas, and Turkey, where it felt like all the
news orgs were doing was reading tweets and playing back 60-second clips that
people were posting online.

On the one hand, news orgs probably have a reasonable fair use case there, but
on the other, they _are_ profiting off content that the OP owns, and OP is
rightly entitled to a portion of that evening's advertising proceeds if their
content comprises a substantial part of the programming.

If someone snippeted CNN and played it repeatedly on their own channel as fair
use, they'd get pursued hard, be unable to fund the legal battle, and be
forced to do whatever CNN said lest a long and ruinous legal battle occur with
spotty if any representation for the little guy. It'd a big multi-national law
firm that bills at $1k/hr v. an innocent little person who probably doesn't
know any legal terms at all and would be lucky to have $10k in savings.

Meanwhile, CNN and other large companies will openly trounce anyone and
everyone they can because they understand that only a tiny fraction will
actually be in a position to hurt them for it, and they'll try to leave that
tiny fraction alone if they can help it. You'll try to sue them for an
injustice and for the $20k they owe you and it'll explode into an 8-year,
multi-million legal battle. The little guy _still_ gets completely screwed
over. Since big companies know this, they take full advantage and effectively,
operate under a different set of laws from the rest of us.

The easy way to mitigate this specific problem wrt copyrights is to reform
copyright law so that we no longer divert a grossly disproportionate amount of
money into content companies and so that they don't file lawsuits that there
is no hope of winning, but it doesn't really solve the larger issue, which is
that the legal system is only really available and functional for those with
the capacity to spend $10 million on lawyers at any given time. Unfortunately,
it doesn't seem that we're going to resolve that during the lifetime of anyone
currently living.

------
StavrosK
Isn't the problem here that she donated all her photos to the Library of
Congress without clarifying what that meant? Apparently, the LoC thought that
the photos were placed in the public domain, and the photographer thought she
was retaining the copyrights.

Also, why the hell is Getty charging for public domain photos? Are they not
aware that people can use those without paying Getty?

~~~
tommorris
Perfectly legal to charge for public domain photos, just as it is legal to
charge for software that's released under open source licenses, so long as you
follow the terms of the license.

People are lazy and will pay money so they don't have to think about
licensing. If you are a graphic designer working in an ad agency and you have
a choice between "go online and download a PD work and not be sure" and "pay
Getty $50 and if there's a copyright issue, you can tell your boss that you
paid Getty", which do you do? Pop it on the corporate credit card is the
easier option.

It's the same reason big companies were suspicious of open source for a long
time. And some still are.

~~~
ptaipale
Is it legal to charge for public domain photos, if you mislead the person who
is charged to believe that the photos are not public domain?

I guess this depends on local legislation, but in most jurisdictions, I think
this would be called fraud.

~~~
cookiecaper
It's legal to charge for public domain content. It's not legal to misrepresent
your wares to the buyer (fraud, as you said). There is no duty to inform
buyers that the thing you're selling is available for free somewhere else, but
when you're going around and demanding royalties from people using something
that's PD and claiming to have an exclusive right to licensing the image, it's
a different ball game.

So yeah, just selling it on their website is probably fine, but extorting
money out of people who have equal right to use the image is probably not.

------
bencollier49
A lot of people here seem to be taking issue with the fact that the
photographer donated her works to the Library of Congress. As it happens,
she's apparently bringing the case under the DMCA's provision for false
attribution of copyright, and has addressed the issue of donation in the
brief. Good luck to her.

------
mijoharas
Looking at the actual legal filing[0] it seems that the relevant section is
35:

    
    
      35. Since approximately 1988, Ms. Highsmith has made her photographs available to
      the public for free through the U.S. Library of Congress, thereby exercising her exclusive rights
      under 17 U.S.C. § 106 to distribute copies of her copyrighted work to the public by sale or other
      transfer of ownership, and to authorize others to do so
    

Now looking at what 17 U.S.C. § 106 says[1], it appears that they are claiming
that she did not transfer her copyright over to the Library of Congress to put
the works in the public domain, but merely provided the library of congress
with the right to distribute copies of the work to the public.

(Not a lawyer).

[0]
[http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?articl...](http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=2249&context=historical)

[1]
[https://www.law.cornell.edu/uscode/text/17/106](https://www.law.cornell.edu/uscode/text/17/106)

~~~
jahewson
> did not transfer her copyright over to the Library of Congress to put the
> works in the public domain

This isn't a thing. There's no well-defined mechanism by which that could be
done.

------
wavefunction
I will just point out that the two statements that "the photos are in the
public domain" and "she never abandoned her photo copyrights" are not in
opposition.

Orphaned works (abandoned copyright) can be subject to re-copyrighting by
another party from what my laymen's understanding of copyright law is.

Instead she specifically stipulated that these photos are in the public domain
and so Getty is obviously operating under bad-faith principles.

~~~
chrismcb
Yes, those two statements are in direct opposition. A work in public domain
has no copyright. If she kept the copyright, the works are not in public
domain.

~~~
wavefunction
Abandoning copyright is different than assigning the works to the public
domain from what I know.

One is an explicit act (moving works into the public domain) and the other is
simply a sin of omission.

------
ComodoHacker
>she found out about Getty Images charging for her photos when she was sent a
letter from Getty that demanded she pay for her own photo that was being
displayed on her own website

Such insolence should be punished hard.

------
Smushman
The fact that their internal processes show total indifference as to whether a
photo is sourced from Public Domain or any other source speaks volumes about
their attitudes re: the art they sell; and from the top of the company down.

It shows their #1 priority was collecting as many pieces of work as they
could, and their #2 effort was reinforcing their payment system (a la threats
if you don't pay).

No where in that equation was the artist, the art itself, or any related
interests. They only cared about being the middleman and acted like it.

------
jwilk
If CloudFlare hates you, here's an archived copy:

[https://archive.is/Bmpg4](https://archive.is/Bmpg4)

------
CodeSheikh
People working at Getty and blindly sending cease-and-desist letters should be
fired at once. These guys are similar to debt collectors and harassment is
their virtue. They could have at least spend sometime time researching about
her. Maybe Getty would have been $1 Billion richer today. She should be
compensated for something at least.

------
DiabloD3
Honestly, I hope she wins, and then donates a huge chunk of it to some worthy
cause just to further piss on Getty.

It's okay that Getty lists high quality images that are public domain or
restriction free as part of their search engine, but it is beyond ethically
wrong to charge money for them.

~~~
chrismcb
Why is it unethical to charge for public domain images? I'm not saying this is
what happened here, but there are many reasons to charge for public domain
images, and for someone to pay. One big reason is for proof they are public
domain. If my business was using images, I would want to make sure I have the
right to republish those images. Even if that means I have to pay for public
domain images. Getty is providing a service and they are charging for it.
Sure, perhaps you can go elsewhere to get those same images for free... Then
you should do so if you don't want to pay the fee. But there is nothing
unethical about charging for public domain images... Now sueing people because
they didn't not pay you for those images is wrong. The federal good government
needs to get involved in this as well.

------
awqrre
Maybe someone should analyze all other images hosted by Getty to find other
infringements...

------
cloudjacker
> public domain

> but are falsely and fraudulently holding themselves out as the exclusive
> copyright owner (and suing others)

So the federal government should be suing them instead of the photographer? It
doesn't seem like the copyright office has its own enforcement agency, so it
probably would be up to the photographer to start a proceeding, since nobody
else will.

This makes her attempt to get copyright damages to be a red herring which
could undermine her entire case.

Therefore, I realize she has no claims, except the single one where Getty
tried to sue her for using her own public domain images.

~~~
jahewson
No, the images are not actually public domain. She owns the copyright and
Getty have infringed her copyright thousands of times. She has many big
claims.

------
6stringmerc
My goodness gracious, I hope she wins and helps inform other Copyright-based
individual professionals of the avenues that are available when one's work is
being exploited in ways that aren't legal (the whole "pay us a penalty" aspect
here, not the selling Public Domain stuff which is okay). Good for her. Will
stay tuned to see how this plays out.

------
kilotaras
There's a story about Deep Purple getting similar demands for their concert in
Russia in 2008. They went to court...and lost. [1]

[1] [http://bravewords.com/news/deep-purple-ordered-to-pay-
royalt...](http://bravewords.com/news/deep-purple-ordered-to-pay-royalty-to-
themselves-in-russia)

------
triangleman
A google search returned this PDF as the actual court filing:

[http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?articl...](http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=2249&context=historical)

~~~
amalag
This is interesting in there:

Getty was found by this Court to have violated 17 U.S.C. § 1202 within the
last 3 years, and ordered to pay over $1 million in damages.

Because Getty has already had a final judgment entered against it by this
Court under 17 U.S.C. § 1202 in the past three years, this Court may treble
the statutory damages in this case against Getty.

------
williamle8300
I believe this is why the Creative-Commons license was created. It stipulates
how others can use your free-to-use intellectual property.

------
donatj
So the library of congress says they're public domain. If they're public
domain are you not free to sell copies of them? Such as how you can sell
copies of famous paintings or copies of Firefox for that matter.

If they're not actually public domain shouldn't she be suing the library of
congress for misrepresenting the license?

Yes, if they're public domain Getty shouldn't be trying to enforce ownership
but that seems their only misdeed.

~~~
pavel_lishin
You might be able to sell prints, but you can't sell the rights to display
those prints. You certainly can't come into people's homes and demand that
they pay you for a copy you got from the Library itself.

~~~
stevefeinstein
I think you can, if you generate a derivative work. And I would bet that could
be something as insignificant as color correction of the image.

~~~
dpark
Pretty sure that doesn't qualify as a derivative work. Changes must be
substantive. Otherwise correcting a typo in a book would give you a copyright
for that correction, preventing others (including the original publisher) from
making the same correction.

Moreover, the photographer here certainly didn't use any "derivative" from
Getty. So even if Getty could claim copyright on their "derivative", they
cannot justly claim copyright over the original.

