
Getty Images Sued Again for Trying to License Public Domain Images - ccnafr
https://www.techdirt.com/articles/20190329/15352641901/getty-images-sued-yet-again-trying-to-license-public-domain-images.shtml
======
praestigiare
In the first listed incident, Getty sent a takedown notice over a public
domain image. This is fraud, just as clearly as the scammers who call elderly
people and tell them they need to pay some fake fee or bill they didn't know
about.

People in this thread keep claiming that because it is public domain, they can
do whatever they want with it including license it, which is not true. They
can certainly sell it, but a license is a legal instrument that grants usage
rights, and Getty cannot grant such rights. To claim to do so is fraud.

~~~
cat199
agree that this is a sleazy business practice, but (and not mentioned here,
also, not a laywyer but), in music for example, there are typically 'artistic'
rights and 'mechanical' rights - e.g. BMG can have the right to duplicate the
recording of your song but not to record someone else performing it, or vice-
versa where they cannot reproduce your recording but can record others
performing it.

There are also nebulous cases involving sampling - some decided in favor of
the one sampling, the others decided in favor of those who were sampled,
depending on the particulars of the case / district / judge, etc.

I would suspect that getty is taking the public domain image, tweaking the
file slightly (perhaps even in non-image related metadata), and thus creating
a 'new work' to which they can make some sort of claim about.

so, while i think you are correct in that the 'visual image' (e.g. the visual
object representation) is entirely in the public domain, the 'image' (e.g. the
actual file) that they actually distribute is not, because they have modified
it somehow and 'added value', etc etc etc. then, enforcement just becomes a
fishing expedition. if you did your homework and used the public domain one
and can refer to it, they don't press. if you didn't, and don't catch it, they
have a reasonable claim/plausible deniability of mis-attribution, and you pay.
easy (but unethical) money to them.

shady, dubious, etc, but probably not out-and-out fraud in the 'illegal'
sense. still not good otherwise because it does facillitate them gaining
market share (by having a bigger product base / collection) which in turn
creates a cyclical effect/ barriers to entry/ etc (just like BMI/ASCAP and
music, for example)

~~~
Retric
Copyright is not so easy to gain.

Sampling is at least nominally a creative act, where changing the resolution
for example is not. You can gain copyright for a collection of say “Dog
Photos” collected from public works. But, you don’t gain anything over
individual photos in that collection only over that specific listing.

~~~
sgc
I agree, it is thankfully somewhat difficult. One thing the US Copyright
office pointed out to me on a request a number of years ago was that any
changes need to be _themselves copyrightable_ to have any influence on the
status of the final work. Little snippets of text/titles are for the moment
still not copyrightable, changing hue or saturation etc would probably not
pass the smell test, nor would any batch processing, purely technical changes
like resolution or file type, etc. Unfortunately the larger players with
standing are unlikely to push for these rulings so it is hard to find
established case law.

------
warent
> "CixxFive argues that it has standing to sue because it licensed some of
> these public domain images. But ... it's not clear how that's Getty's
> fault."

Surely intentionally misrepresenting the images as being wholly owned and
copyrighted by Getty makes it their fault. They're deceiving the customer
outright even if they're trying to be subtle about it. Behaving as if Getty is
totally free of responsibility from this is just playing make-believe where we
all pretend that nothing ethically reprehensible is happening.

~~~
brianpgordon
It seems pretty clear to me that they're talking about Getty's actual legal
liability here, not making a moral judgment on whether what they're doing is
wrong. In fact, two paragraphs later they say-

> I'm certainly sensitive to the slimy practices of Getty Images, and claiming
> that public domain images are available for license (at very high fees) is
> very slimy. But it's not at all clear that it's against the law.

------
anonlapwarmer
EEVblog and CodysLab come to mind on an unrelated but annoying scam that
YouTube hasn't addressed sufficiently. Shouldn't there be a class-action
against YouTube for the scammy gambit of allowing random people to claim
content ID of works they don't own and then attack the original creators? This
scam alone threatens to kick thousands of legitimate content creators off
while enriching shady corporations and outright criminals. It seems like the
only way to get YT to get their act together regarding measurably improving
"who owns what."

~~~
AnthonyMouse
> It seems like the only way to get YT to get their act together regarding
> measurably improving "who owns what."

The problem is fundamentally that this isn't really possible. What you have is
one person claiming they have a right to use something and another claiming
they don't.

To know who is right you need to know who created the work, who they licensed
it to under what terms, whether the copyright has expired, etc. YouTube has
none of that information, nor any reasonable way to obtain it. They're not a
court.

But they do have a bunch of large media companies who like to sue them over
anything they can, wanting them to solve this by magic. So their choice is to
either screw over their users or defend them in court. One of those is much
less expensive.

The alternative would be to fix the law to put the dispute between the user
and the claimant into court to begin with and only come to the intermediary
once the matter has been adjudicated. The media companies _hate_ that, because
it's slower and more expensive than immediately screwing over the users with
no effective recourse, but it's what would be necessary for accurate/equitable
determinations.

~~~
belorn
There are plenty of options for the law to fix this.

They could make it illegal or costly to make a false claim based on copyright.
Content ID include the world "copyrighted content was found in your video", so
just here we could make a first change to the law.

We could also make it illegal to disrupt someones income on advertisement
through the means of copyright claim that negligent ignores fair use. You take
a judge and have them look at those cases and allow the judge to fine obvious
false claims. This create liability which trickle down.

You could create regulations that demand content provider to compensate lost
income from false content id or they loose safe harbor protection. This would
encourage YT to demand a deposit when a claim is made, and give this deposit
to the accused if the claim is challenged.

All this without demanding that YT itself know if the claim is correct or not.

~~~
AnthonyMouse
> They could make it illegal or costly to make a false claim based on
> copyright. Content ID include the world "copyrighted content was found in
> your video", so just here we could make a first change to the law.

You're not actually solving the underlying problem. So you make filing a false
claim illegal -- great, that would legitimately be an improvement over the
status quo. We should do that. It would reduce the number of fraudulent claims
somewhat.

So after we do that and someone says that a claim is false, what happens then?
You still need to adjudicate who is right, so you still need a court. Which
means most of the time the victim won't have the resources to enforce it.

What really matters here is the default. What happens when neither party will
spend the resources to initiate litigation? Because whatever happens then is
what will happen in 99% of cases.

------
btown
[https://www.lw.com/thoughtleadership/using-public-domain-
con...](https://www.lw.com/thoughtleadership/using-public-domain-content-in-
new-media) mentions an interesting and potentially applicable precedent:

> Nonetheless, the U.S. Supreme Court’s ruling in Dastar Corporation v.
> Twentieth Century Fox Film Corporation24 greatly restricted the trademark
> claim of “reverse passing off”—when a person represents someone else’s work
> as his or her own—regarding works in the public domain, although a claim of
> false advertising may still be viable. Dastar took a set of video programs
> in the public domain, based on General Dwight D. Eisenhower’s book
> chronicling his European campaign in World War II, and edited them slightly,
> including replacing the original credits and removing references to
> Eisenhower’s still-copyrighted book. The owners of the film rights to the
> book and the expired copyright on the original video programs sued Dastar
> for, among other things, reverse passing off by presenting the video
> programs as a Dastar production.25 The Supreme Court held that Dastar’s
> actions did not constitute reverse passing off under federal trademark law
> because the video programs were in the public domain and therefore could be
> freely exploited by anyone. To hold otherwise would be to “create[] a
> species of perpetual patent and copyright, which Congress may not do.”26 The
> Court did, however, leave open the possibility that Dastar might be liable
> under other provisions of federal trademark law that prohibit false
> advertising, such as misrepresenting the nature or qualities of the
> advertised work.27 In light of the Dastar holding and the continued
> viability of some trademark claims, those seeking to use a public domain
> work should consider the prospect of liability for trademark infringement or
> related state unfair competition claims.

(IANAL but I love this kind of stuff.)

------
paultopia
Count me as another "stop being so dismissive of these lawsuits, there's a
plausible claim here" voice. Claiming some kind of ownership right in public
domain images, and hence implicitly or explicitly representing to people that
if they use those images without paying they can get sued, seems like
straightforward fraud.

It's no different than if I set up a toll booth on a public sidewalk, with a
big official-looking sign saying "I own this sidewalk, and you have to pay me
a dollar to walk down it." People who reasonably believe my misrepresentations
as to my ownership of the sidewalk and give me money have at least pretty
plausible good old-fashioned fraud claims.

The argument of the linked article, transposed to the sidewalk toll booth
context, seems to roughly be "Getty didn't put up a sign saying they OWNED the
sidewalk, they put up a sign saying 'License for sale to this sidewalk which
we have the rights to sell licenses to' and the silly plaintiffs shouldn't
have read it like a normal person to be a claim of ownership; instead they'd
should have read it in the unnatural way that Getty wanted to trick them into
not reading it as." Or, in tort lawyer language, as the claim that their
reliance on Getty's claim of ownership wasn't justified. Well, this sounds
like a jury question to me.

------
TimTheTinker
This is really a job for the legislature, not the courts. We all have an
intuitive sense that _something_ about Getty's behavior is morally wrong. But
_what_ is wrong about it isn't very well-defined. Creating those legal
definitions is a big part of the legislature's job.

~~~
njharman
I don’t have that intuitive sense. Other than believing copyright is wrong and
that is ther biz model.

The legislature has already ruled. They have defined public domain. They (and
everyone who knows copyright law) understands you can do anything with public
domain. Including selling, licencensing. As the OA correctly state several
times. Only the clickbait title implies otherwise.

Fraud has also been apropriately legislated.

~~~
vanderZwan
> _The legislature has already ruled._

So? It's not like law is a _" define it once and never adjust or iterate it"_
kind of deal. A law is not correct just because it has already been defined
and applied. That would be the moral equivalent to circular reasoning, and by
that logic we should still stone people for taking the Lord's name in vain and
in general go eye for an eye on each other.

~~~
TimTheTinker
> in general go eye for an eye on each other

Note the original “eye for eye” statute was setting a judicial penalty limit,
not giving people license to brutal personal retaliation.

This was important in legal history because ancient justice prior to that
tended to severely over-penalize criminal violence. “Eye for eye” would have
read “if a person gouges out another person’s eye, the penalty is (only) that
their own eye should be gouged out” —- which would have seemed _very_ lenient
given the existing legal climate in the ancient near-east.

------
rjmunro
As far as I can tell, if they took a public domain image, modified it in some
way, and sold that on their site, it would be copyright them. They could sue
you for using it or whatever they wanted.

What would count as modified, I don't know. E.g. Maybe they put real man hours
in on Photoshop to remove some artifact and to correct the color. I don't
think anyone would argue they shouldn't deserve to be paid. But if all they
did was crop it, resize it or even just compressing it as a JPEG they might be
fine in legal terms.

------
eugeniub
If the law is on Getty's side, the law should be changed. Selling public
domain content should be illegal if it's a digital work, as opposed to a
printed book. At the very least, it should be required that it's clearly
labeled as public domain.

~~~
ptaipale
Disagree a bit: selling public domain content is OK, as long as you don't
mislead the customer and claim that you own the copyright. It's essential that
the customer knows what he or she is buying (for instance, the actual value is
in finding the relevant PD content).

~~~
emilfihlman
Nobody disagrees that you can of course ask for a delivery/handling/whatever
bullshit fee.

But the law should require that you mark that as such and that you must make
it known that it is not a fee on the photo. Additionally it should be required
that if you are providing access to photos for a fee, you need to let the
buyer know it's public domain.

------
smadge
The problem seems to be that while it is deceptive and probably illegal to
imply you have a copyright over a public domain image, the company who is
suing doesn't have the "standing" to sue. Instead that is the responsibility
of the FTC or an Attorney General. Although it seems unfortunate because those
institutions have limited resources and/or might be captured and not willing
to pursue such cases.

~~~
paultopia
But this is not the case when the company suing has actually been induced by
the fraud to purchase images. Then they have knock-down standing, because they
have an individualized legally cognizable injury.

~~~
smadge
I don’t have any legal expertise. The article just made it seem like they
wouldn’t win the case because of that reason.

~~~
paultopia
No personal criticism meant! The article is badly written to suggest the
standing problem is general when it's really a problem only for plaintiffs who
haven't actually lost money on the scam. (One is the many flaws with the
article...)

------
jrochkind1
See also:

[https://www.journals.uchicago.edu/doi/abs/10.1086/694241?jou...](https://www.journals.uchicago.edu/doi/abs/10.1086/694241?journalCode=adx)

Understanding Copyfraud: Public Domain Images and False Claims of Copyright by
Chris Needham

Copyright fraud or copyfraud—when museums misrepresent or restrict rights in
ways that go against public domain copyright law—continues to be a widespread
practice even in the years following the 1999 Bridgeman Art Library, LTD. v.
Corel Corp. court case. To help clarify this situation, the author first
reviews the relevant copyright issues, then considers some of the problems
that copyfraud creates in universities, publishing houses, and museums. In
conclusion, he explores the ways museums, supported by their librarians and
visual resources managers, have recently changed their approach to copyright
and copyfraud, and the ways in which this is transforming scholarship and
allowing scholars and librarians to better serve the public.

[However that article IS copyrighted and paywalled at that URL. doi:
10.1086/694241 ]

------
imhelpingu
I had to stop releasing music under creative commons because I noticed
copyright trolls were trying to claim it was there's when some tried to use it
as music in their youtube videos. The whole point of releasing under creative
commons is so the exact opposite thing happens.

------
egfx
Well, at least they didn't license gif's and left our precious memes alone. Oh
wait... GIF.com

------
jordache
I hate these guys so much. Give me back full functionality in Google image
search.

------
visarga
Isn't it required to accompany public domain images with their original
license?

~~~
njharman
Nope. Not even maybe.

The public domain is utterly free. As in free to do anything with. One reason
Copyleft and Creative Commons licenses exist. And they require copyright.
Because no one can control what is done with public domain.

In the USA at leasr

------
ck2
considering banks during the financial-crisis got away without even a penalty,
forget prison time, for automating foreclosures on people's homes that the
bank didn't actually own or weren't behind on the mortgage, I suspect this
crime-via-automation will also not be punished

------
massysett
This is sleazy how? Getty has done the work of looking at images and screening
them and putting them in a catalog. No more sleazy than Red Hat or Canonical
selling support for software it didn’t write. If people want free public
domain images, they can search for them. Only problem is, that’s work! Getty
did it for you.

~~~
Taniwha
They are claiming copyright on the works something they don't own - even if
you put something into the public domain you still can claim copyright - Getty
can't go around licensing your copyright to others without your permission,
much less demanding money because they claim that they own it.

What they can do is resell things in the public domain, what they can't do is
shake people down for licensing fees

------
caprese
Getty has a model of convincing people to buy images available for free.

There's no crime, or damages, in ripping people off.

If Getty sues you for thinking you didn't have their license for an image in
public domain, that'll be funny. But thats not currently what they are doing,
and when their processes gets to that part of the funnel on occasion, their
human lawyer looks at it and decides not to do anything.

~~~
geofft
Why doesn't it count as fraud? It's misrepresenting the truth in the context
of a business transaction for your monetary gain and their monetary loss.

Is the deal that Getty doesn't know for sure that they don't own the rights,
and therefore it doesn't legally count as deliberate / knowing deception?

Or is it that Getty says "You can buy a license from us" but does not say "We
own the copyright for this" or "We are the exclusive licensors of the
copyright for this," so they're not actually lying?

~~~
gnopgnip
For the same reason you are allowed to sell open source software.

~~~
luckylion
Are you allowed to claim that the software you're selling is proprietary,
owned and copyrighted by you and then go after people that obtained them from
the source (or are the original creator of said software)? Because that
appears to be what Getty is doing.

