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Photographer Suing Getty Images for $1B (petapixel.com)
408 points by iamben on July 28, 2016 | hide | past | web | favorite | 159 comments



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.


"I can't imagine how to solve that without a total change of copyright laws"

What?

Sounds more like they are in flagrant violation of existing copyright laws, and deserve to get their head handed to them in court.


Laws have denotative semantics—what they strictly allow, and what they strictly don't. But any given law will also create (or modify) an incentive structure. Copyright has a problem, in that IP rights get more profitable as you get closer and closer to being in violation of the law. The incentive that creates is for everyone to try to violate the spirit, but not the letter of copyright law.

A better law would fix the incentives: to make copyright "abuse" a sliding scale, one that starts long before the current point where something becomes a violation of the law, where the more profitably-abusive an act is, the bigger a fine you'll get for doing it. The cost-benefit should always work out in favor of not violating the spirit of copyright law.


>where the more profitably-abusive an act is, the bigger a fine you'll get for doing it

Hahahah... You should do stand-up for Goldman Sachs


I suppose the point is that the current laws are difficult to enforce and the process is ripe for abuse.


I think they wanted to avoid the situation rather than punish it after the fact.


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


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).


It's more nuanced, and more sinister.

Getty maintains the "exclusive right" to license an image on behalf of the copyright owner (typically a photographer). The photographer does not assign ownership, just the right to license.

They use automation to find cases of license violation--using the image without paying Getty a license fee. That triggers an automated message saying "You owe us $500."

Getty doesn't (as far as I can tell) verify that the photographer owns the rights to the image, and when a person asks for that proof, Getty's response is to "Check the website" and will only submit further proof upon subpoena.


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


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.


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.


What I want to know is if they sent DMCA notices over these.

https://www.law.cornell.edu/uscode/text/17/512

(3) Elements of notification.— (A) To be effective under this subsection, a notification of claimed infringement must be a written communication provided to the designated agent of a service provider that includes substantially the following:

[...]

(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

=====

I'm having trouble figuring out if there's any way they could have a good faith belief that they were the copyright holders here (I suspect not), though I do not know whether or not they ever sent DMCA notices containing all of the elements.


> the photographer has relinquished her copyright

From the article:

"Highsmith says she never abandoned her photo copyrights"


Well it's more likely that a photographer submitted a bunch of public domain images claiming he/she owned the copyright.

Then Getty images handled the situation poorly.

Look at another Getty case.

Haitian photographer Daniel Morel posted some photos to TwitPic. 'Lisandro Suaero' downloaded them and sold them to AFP / Getty. Then Getty tried to sue Morel. [1]

Morel was awarded 1.2 million [2]. Getty tried to use a weird argument that they had a deal with Twitter so they didn't owe him anything.

[1] http://blog.jeremynicholl.com/2010/05/03/afp-steal-photos-th...

[2] http://www.digitaltrends.com/social-media/1-2-million-lawsui...


The most entertaining part is they sent copyright notices to the original creator of the images. That is how she found out they were suing people over it.


> I can't imagine how to solve that without a total change of copyright laws

Wouldn't prosecution for fraud be enough?


Only if it's an effective and accessible protection.

Note that the victims of Getty's RICO tactics here don't have standing to sue for copyright violation. Only for the possible fraud elements. This reduces the number of parties with significant legal protections tremendously.

The case has to proceed quickly and effectively. Long delays or appeals will steal the thunder.

The sting's got to be harsh. I'm liking the billion-dollar amount, as that's enough to make virtually any company sit up and take notice.

But the real problem is that low-grade penny-ante DMCA takedown, C&D, or other strong-arming, on questionable bases, are likely to remain profitable for a long time.


I think its tough to say... It's like I know it smells (real) bad, but I can't quite put my finger on what it is that stinks so much.

I guess I would say it is one thing to 'sell' public domain pictures in your database along with privately held photos - using a subscription model, Getty could say it is just creating a one stop shop and charging for that service. I am sure their lawyers thought about that long ago, when they first brought on the Public Domain photos.

But to go to the level of actually shaking people down for money when they are using a photo that is Public Domain leans toward organized crime, with copyright laws behaving as accessories to enforcement. It's like charging 'protection money' when you should naturally have freedom from harassment.

How many uncounted people have paid that shakedown fee for their Public Domain pictures, not knowing any better...

Proves the old adage - Knowledge is Power.


I remember kids pulling this in primary school.

- Pay me and I'll make sure this guy won't beat you up

- But that's your brother ..

- So what do you say ?


Building slightly on that analogy:

Before setting up that tent, some random person tells getty "Hey I own this park," pointing to Central Park, "You can charge admission on my behalf."

Getty then setups up a tent without a second thought about verifying the veracity of the persons claim.

//

I'm not sure if Getty just sucked in all those public domain images and said "Is private now." or through their submission process, some individually claimed to own the copyright, and had Getty do the dirty work.


Couldn't be a more evil company to be sued.

Wish Thier would represent him and kick a hole in Getty!


> Wish Thier would represent him and kick a hole in Getty!

The photographer is a female, and the person you named spells his last name Thiel.


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.


> ...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


According to exhibit B [1] - The instrument of gift - she did not intend to relinquish her rights as there are specific conditions for reproduction of the works contained in the Carol M. Highsmith Archive.

Also explicit permission is given to the library to make copies of the work for security,preservation etc.

[1] Google Gov-Uscourts-Nysd-460787-1-2


You say that but that's not the reading I make of this contract. "I hereby dedicate to the public all rights, including copyrights,... that i posses in this collection".

that seems pretty clear cut to me. Conditions for reproduction only seem to express the general ways the content should be available for users of the library. Nothing limiting availability, in fact it's promoting methods of being available.

So that leaves the question of a: whether or not getty et al were able to sell works in the public domain. My quick read of it seems that if they can come up with some kind of argument that they are selling derivative work (including perhaps some kind of unique identification layer, or meta data perhaps ... ?), OR that they are selling a reproduction. tenuous, but that may be their justification.

as for requesting a license fee, well that's on LCS and Alamy (who I don't think have had an issue in the past 3 years of this stuff, so the multiplier doesn't apply here)

NB: Alamy being a uk company, so they can hide behind a corporate shield if their assets are mostly offshore...

this is the settle page, from the first exhibit: https://settle.lcs.global/103173853953 -- that's what she got sent. It doesn't appear that they argue they are the exclusive license holder, and especially if they argue they are holding a license to derivative work -- well. that's a whole ball of wax.

Thinking further, since she no longer holds the copyright to these images, and the United States is not listed as a co-plaintiff, I'm not even sure she has standing to bring this case at all -- but, on that, IANAL. :P


I am not a lawyer either but I think even if you adhere to the declaratory theory of law and take this waiver literally word for word

I hereby dedicate to the public all rights, including copyrights throughout the world, that I possess in this collection.

I have the feeling the lawyer who drafted this instrument of gift was a very competent one as in USA law the copyright of a collection or compilation does not affect the copyright of the works included in it.

17 U.S.C. § 103(b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.


Yeah. you're absolutely right, that clause will be the point of argument. This is where my lack of legal education fails me though, since it is not clear what it means when saying _material contributed by the author_ and what _preexisting material_ means.


Also, this appears to be down to a getty user called 'buyenlarge', who is listing all kinds of work they don't own.

For example:

This photo-

http://www.gettyimages.com/license/515020819

is actually this photo:

https://www.flickr.com/photos/library_of_congress/2178341487

which was taken by a now dead photographer called Russell Lee, and owned by the Farm Security Administration.

PS: this same person appears to have about 500k listings for prints etc on amazon.com..... why aren't they a co-defendant?


Well the lawsuit names "John Does 1-100" as co-defendants so I would guess one of them.


Good catch!


Interesting to see that Alamy are involved with this. I have firsthand experience dealing with them first as a photo contributor and later as a copyright holder finding Alamy to be in breach of both UK copyright law and also their own contributor agreement.

Alamy claim they delete all copies of contributor photos from their servers 45 days after you terminate your contract but failed to do this, and continued serving my images for many months after our agreement ended. When I contacted them they first claimed it was Google's fault (cached images) and them later admitted they had done it but were still defiant and claimed they could do it because finding my images was 'difficult'.

They are a large photo agency and their infrastructure is first-class, so I had some interesting email and telephone exchanges with Level 3 and AWS when I sent them DMCA takedown notices and explained that there was no 'safe harbor' for them and I had absolute proof (the Exif metadata with my name and copyright notice was still preserved in the images and I provided direct alamy.com/... links to them hosted by Alamy).

Blog post here, if you want the whole story including replies from Alamy. They seem like one of the better photo agencies but damn, they really don't like being held to the same standards they hold the public to. https://www.tombrossman.com/blog/2014/alamy-copyright-and-ex...


> My quick read of it seems that if they can come up with some kind of argument that they are selling derivative work (including perhaps some kind of unique identification layer, or meta data perhaps ... ?), OR that they are selling a reproduction. tenuous, but that may be their justification.

Wouldn't this make all electronically transmitted media into "derivative works", though? This sounds like such a reading would make the concept meaningless (and also possibly contradict the outcome of other infringement/attribution cases)


as broad as that yes, but if you enhance the work during transmission (e.g. by including meta data about the work) you may be able to argue derivation. i think it's an area where clearly technology and the ability to reproduce like-for-like fails the reading of law as it stands today.


This still seems shaky to me: wouldn't then, e.g. the Google image search pipeline perform an enormous number of copyright violations every day? They download images from a huge number of different rights holders, store them on google servers, recode them to produce thumbnails and distribute the recoded images via the image search UI. By your logic, they'd have to ask every single rights builder for permission to create derived works before they can include their images in image search.

Additionally, every time I download something from the web and store it on my hard drive, my OS will enrich it with metadata: file name and path, timestamps, local user, permissions, etc. So unless a site author grants all visitors the permission to create derived works, I'd be infringing just by visiting their web site.

Finally, if you assume that only some metadata counts as creating a derived work, Getty would have to prove that all users they threatened did in fact use Getty's "enhanced" version of the image and not the original. I find it very unlikely that the photographer herself would have used Getty's version and not herselfes, so I don't think they did that.


I'm not sure about your other points but image search thumbnails have been found by the courts to be fair use. https://www.eff.org/cases/kelly-v-arriba-soft


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).


Copyrights are transferrable. https://en.wikipedia.org/wiki/Copyright#Transfer_and_licensi...

Are you maybe thinking of Moral Rights? Those are inalienable and not transferrable in many countries. https://en.wikipedia.org/wiki/Moral_rights

Copyrights are also assigned automatically to the creator by the act of creating something, that might also be what you were thinking of.


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


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

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

Face, meet egg.


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


From the article:

> The photographer’s photos are listed on the library’s website as being in the public domain with “no known restrictions on publication.”

> However, Highsmith says she never abandoned her photo copyrights


Yeah, the Library of Congress isn't exactly a licensing body. Well I guess they technically are "the" licensing body, just not in the business of earning money doing it.


The DMCA isn't the most important part here, the (classical) infringement itself is the big factor, because the images are under the photographer's exclusive copyright. Adding the DMCA claim of falsifying copyright information certainly helps her case though.

Having said that, if it turns out that the library of congress is responsible for the infringements (because they published the images and labelled them incorrectly as being public domain) then Getty would be off the hook for infringement but the DMCA claim of falsifying the copyright information would still apply (as you can't claim exclusive copyright over a public domain work).

I suppose it's possible that an unscrupulous third party falsely licensed the "public domain" images to Getty, which would make Getty responsible for neither the falsification of copyright information, nor the infringement. I guess in that case Getty would still be found to have been infringing, but not deliberately.


> Having said that, if it turns out that the library of congress is responsible for the infringements (because they published the images and labelled them incorrectly as being public domain) then Getty would be off the hook for infringement

It seems to me that mislabeling wouldn't make the LoC legally responsible for the infringement, but might make Getty not liable for any infringement that happened entirely before they were made aware of the incorrect labeling. Or maybe not; since willfulness is an enhancement on liability for infringement liability [0], not a prerequisite, the fact that Getty did not know that the images were subject to copyright may not be a defense.

> I suppose it's possible that an unscrupulous third party falsely licensed the "public domain" images to Getty, which would make Getty responsible for neither the falsification of copyright information, nor the infringement.

AFAICT, that wouldn't necessarily legally relieve Getty of liability, though it would make the other party liable to the copyright owner for willful infringement, fraudulent claims of ownership, and contributory infringement (with regard to Getty's infringement), and also liable to Getty for fraud and potentially other torts.

[0] see, e.g., 17 U.S.C. Sec. 504(c)(2)


I wonder if they filed any DMCA claims over those images, though? The clause you attest to under penalty of perjury is that you represent the copyright holder of the works claimed to be infringed.

So if they sent her a DMCA of her own images, as one might assume based on what was said, then it could be interesting if that gets brought up in court.


Yes I definitely agree with this assessment. There's more than a few scenarios in which Getty unintentionally infringed but is still liable and will look to sue the third party which misled them.


Why do you say unintentionally?

Was Getty not claiming copyright of public-domain images (from their "assumption")?


Youtube is required to police copyright, why not Getty?


> Youtube is required to police copyright

They do police copyright. Whether they are required to (other than as a contractual matter with certain owners) is a little more debatable.


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.


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.


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.


negligence can't be deliberate

That's the problem, isn't it? Many crimes, for the law to apply, have to be committed knowingly. But if your internal controls are weak, and if cross-checking when billing is discouraged you just overbill on the chance that the customer will pay up. And you don't commit crime, only if you check and bill anyway, then it's crime!

If we are arguing language, the correct words should be "criminogenic environment".


> 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


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=...


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.


In USA law isn't wilful blindness an example of what might be considered deliberate negligence in other jurisdictions?

Your link discusses the ill-defined nature of the middle ground, indeed if someone is apathetic as to whether the actions they take are negligent, those actions being deliberate, then it appears to fall in the even less well defined middle ground between recklessness and negligence. The link summarises with 3 conditions for recklessness, the first two being:

>As to recklessness, the better rule to apply is that requiring a strict test, i.e., the defendant must (a) actually know the course of conduct he is about to embark upon involves the probability of death or great harm to another, and (b) choose to risk occurrence of harm. (duke.edu link, ibid ) //

It primarily discusses criminal recklessness and only briefly touches on torts, as copyright infringement is, so I'm not really sure how relevant it is.

Perhaps you could comment on this imagined scenario:

A company deliberately includes CC-NC works (for example) in their morgue files and then neglects to check whether those works are then sold or included in the works that they chase up as infringements. Indeed they consider the problem but choose not to investigate whether they might be inadvertently charging for works that they have no rights to charge for, isn't there deliberate negligence there? They chose to avoid doing what the notional reasonable-man would consider to be necessary to avoid copyright infringement? They don't know they're infringing and so their actions aren't reckless??

TL;DR I propose that if you avoid acquiring the knowledge that would make you aware how reckless something were, you continue to be negligent just deliberately so.

(Didn't read your link entirely, sorry).

>"I'm not sure which law school taught you that" (morninj) //

Isn't the point of the link that judges don't even the line between negligence and recklessness correctly and that state laws muddy the line considerably; that "criminal negligence" should be an oxymoron under what the author considers to be proper interpretation of the USC. However, and correct me if I'm wrong, "criminal negligence" is a charge that is currently brought quite properly in various States of the USA.

IANAL just butting in with my tupenneth in the hope of getting educated.


The basic definition [1] is not about failing to know the risk but rather failing to exercise care. Can one not deliberately fail to exercise that care?

I am not versed in law, so please accept this as a request for clarification, not a debate.

1. https://en.wikipedia.org/wiki/Negligence


"Extremely careless"

Sorry, could not resist.



"Gross negligence" means you really really should have known of the risk. But it's still a contradiction to say that someone was deliberately grossly negligent.


Not really, I don't think. That's basically the idea behind deniability - you kinda sort know about something, but you kinda sort make sure you never actually know about it.

Gross negligence is often more along the lines of "we are 99.999% sure you are lying, but we can't prove it".


No. The Wikipedia article linked above says:

    In Wilson v Brett Baron Rolfe (later Lord Cranworth) said he "could see no difference between negligence and gross negligence; that it was the same thing, with the addition of a vituperative epithet."


eh, if they're listed as public domain on the library of congress and Getty got their images there, wouldn't be the library of congress the one committing copyright infringement?

Getty is using the license they got the images with, after all.


If a photo is public domain, why do you believe Getty can sue someone for copyright infringement for using that one photo?

It is not like they are suing people for republishing a collection or something that could Getty could have created and have copyright in.


many works are distributed under dual licensing and how you obtained the files define it's license.

now what I don't know is the legality of attaching a license to a redistribution of a public domain work - technically one can claim recompression is transformative and that you hold a license to the altered work, in which case the origin of the file matters in defining if third parties are infringing (and this is why gpl works better in these cases, you don't get to change the license downstream)

IAMNYL edit: messed up


IAMYL?

You can resell public domain works as much as you want, but you can't go around claiming an exclusive right to the image and trying to force other people to pay you to license a right that you don't possess.


> technically one can claim recompression is transformative

No, because transformative applies to uses of the work, not the work itself. A recompressed image has the same uses as the original image so there's absolutely no scope for considering it to be transformative.

As far as attaching licenses to public domain works goes, you can do what you like. There are no restrictions. However, you can't claim to have an exclusive license, and you certainly can't claim to own any copyright in the work, because none exists.


technically one can claim recompression is transformative

One can claim whatever one wants, but I doubt the courts would fall for that.


What does IAMNYL mean? I googled it but I didn't come up with anything


I Am Not Your Lawyer, I assume. Thank goodness, since they're providing terrible legal advice.


I Am Not Your Lawyer. Probably in this case the person is saying while I am a lawyer... I'm not YOUR lawyer. :P


Others have already answered the question, but let me add to their answers that "I Am Not Your Lawyer" is usually rendered as IANYL, not IAMNYL, which is why you could not find it.

More common is IANAL, which means "I Am Not A Lawyer".


Don't forget IAALBIANYL "I am a lawyer but I am not your lawyer."


Copyright thugs have been punishing people with outrageous fines and settlements for years. $1B doesn't seem excessive.

Live by the sword. Die by the sword.


That's my take as well. It's bad enough companies make legitimate but lazy mistakes like filing DMCA strikes against works with the same name as something they own. But it seems like the absolute minimum you ought to do is make sure beyond a doubt you own what you claim to own.


It's only about twice the statutory damages. And it looks like the article is only using $25,000 per work for that number. For willful infringement, statutory damages can go up to $150,000, which would be about $2.8 billion for 18,755 photos here. I'd say she's being fairly generous by offering to settle for a mere $1 billion!


Maybe she's taking a play out of their own book?

"We could have sued you for this much, but instead we're offering you a chance to settle for only this amount."


Ha ha... funny.

I would have sued them for the full amount the law permitted for each image if the company goes under as a result that would act as example/discouragement for any other company that would think about doing that in the future.

People get fined ridiculous amounts all the time as discouragement so why shouldn't companies have the same happen to them their technically a person in the US no?


If the company goes under because it can't make the full payment, I'd accept a transfer of the remaining copyrights and promptly place everything in the public domain.


It's because she's asking under DMCA 1202/1203, false copyright information, not for infringement.


While $1B seems excessive, and more of a number to make a point...

Broadly speaking, the "content industry" has habitually been dragging individual file-sharers into court and claiming life-altering, bankruptcy-forcing judgements for more trivial violations, in order to terrify the general public into compliance.

If the threat of a $1B judgement is enough to threaten Getty with bankruptcy, if it's enough to scare other rights-claimers into making their businesses more businesslike, that's actually very comparable.


First rule of any price negotiation, always start WAY too high :) On a serious note, Getty has been doing this underhanded shit for ages, and the amount they pay photographers is even worse. From what I've read, they don't even report to photographers, who downloaded their works. So there really is no accountability, on how many you REALLY sold. It's shady nonsense.


Yes, $1B sounds excessive... but that is also a valid legal strategy -- making your complaint cover everything under the sun, for as much damages as possible, expecting their lawyers to fight each point and amount, and hopefully the end result is something you actually find acceptable.


It might be excessive, but we are talking about 18,755 images, and I bet Getty has won cases over single images in the $55,000 range. Its only fair they pay the same that they won from others.


It's not excessive it's too low now $1B per image would be excessive but not unheard of so still fair.

Now $18,755B would make for a nice discouraging lawsuit that make any other company think twice about pulling this ever again.

I want Getty to go bankrupt as a result of the lawsuit. I'm evil I know but it's what they would have done so I see nothing wrong with that.


Your analogy is pretty precise up to the "naked" part. I've heard pretty bad things about Getty Images from their customers (much more expensive than competitors, much worse customer service.) Naked I've never heard...


I'm going to add a post-hoc rationalization that has something to do with it being a ballsy move, though I wasn't thinking of that at the time...


To distinguish from a nudist's casual disregard for garments and a hermit's inability to acquire substantial coverings, perhaps it would be better if Getty were not entirely naked, but instead had its underpants dropped to its ankles.

That says, "I own clothes, and usually wear them in a socially acceptable way, but I made an exception just for you and your formerly unstinky couch cushions."


I very much hope that a $1B judgment is enough to put Getty Images out of business based on their terrible practices but sadly I would imagine it would take much more than that.


Ars has some good coverage of this as well: http://arstechnica.com/tech-policy/2016/07/photographer-sues...

> 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.


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?


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.


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.


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?


> Isn't the problem here that she donated all her photos to the Library of Congress without clarifying what that meant?

No, because

> why the hell is Getty charging for public domain photos?

There is no amount of clarification there that allows Getty to charge for something. Either it's in the public domain, in which case they have no right to charge for use of the photos, or it's not, in which case they have no right to charge for the photos.

I'd wager that this is some sort of colossal business fuck-up that's not anyone's fault. Mostly because I can't imagine anyone so baldly stealing money.


People charge for public domain things all the time. I've bought plenty of books from the 17 and 18 hundreds on my kindle. Pay for the convenience and for them putting together a nice version.


What you're buying there is a copy. That's not the same thing as someone coming after you and saying that you need to pay them for the copy you have acquired.


Books in the 1700s and 1800s are no longer under copyright, they are now in the public domain. Anybody can sell them for whatever the market will bear. Since they are not longer under copyright, there is no longer a copyright holder whose rights they are infringing and thus nobody that can charge them for violating copyright law.

The question with Highsmith is whether she still holds the copyright or whether she put the pictures in the public domain. Answering this could be very interesting.

The other angle that I would expect to see come up is whether Getty can sue (or threaten to sue) over pictures that they clearly do not hold the copyright to. That seems to be a clear violation of racketeering laws. https://en.wikipedia.org/wiki/Racketeering

Ref:

* http://www.copyright.gov/help/faq/faq-duration.html#duration

* https://en.wikipedia.org/wiki/Public_domain "Works in the public domain are those whose exclusive intellectual property rights have expired, have been forfeited, or are inapplicable."


But the publishers of those nicer versions don't go around and threaten anyone who got them for free with lawyers.

Getty actively threatened anyone using the public domain images.


Actually, the copyright those nicer versions sometimes claim already lead to this exact situation, with publishers making the case that the derivative work should be awarded new copyright.

Here however it is clear-cut, the photos are not modified.


Oh but surely the images were optimised for computer display in a non-trivial process!


That's actually not totally unreasonable. Also maybe getty ran some clever image recognition to auto tag them up and organise them all? That's all a useful charge-able service. Going after existing usage is clearly BS, though.


She just had her photo up on her website. They clearly went after her without any reason to believe she used their "clever organization" image searching service. These scumbags were probably using an image recognition bot to scrape the web for all usage and spraying everyone with legal letters.


Certainly, not probably. Getty purchased picscout in the past few years, a company making and using such bot, and sending automated demand letter.


Anyone is perfectly free to charge for content that is in the public domain. Getty still provides a service. For example the ability to search, preview, or download images. Bandwidth does still have a cost.

Of course it's also fine for someone to use Getty to locate a public domain image, and then acquire it for free from another source.

Getty sending copyright notices on works they know (or should know) to be in the public domain is a real problem.

Ulysses is in the public domain. You can buy it for $2. https://www.amazon.com/Ulysses-Wordsworth-Classics-James-Joy...


That $2 pays for the physical paper copy of the book. You aren't buying a license though, because they can't legally sell you one. It's pretty clear here that Getty was selling something (licenses) they had no right to sell. Trying to enforce these fraudulent "licenses" was just the icing on the cake.


The Kindle edition is 99 cents.


This misses the point. If you have the public domain ebook already, Amazon isn't knocking on your door asking for their cut.

Getty literally told the photographer she had to pay a license for her own work posted on her website. She didn't acquire it from Getty.

You can acquire a public domain ebook from somewhere else for free or you can pay 99c to acquire it from Amazon. But either way, you're not paying for a license to copy it.


That's the rub in this case it seems, that if Getty never took this action against the creator herself, who understood the situation and, I'm not sure they'd run into much stink about selling Public Domain images as a business component (they provide a service). Her catching them in the act is stunning.


This Kindle edition is free:

http://www.gutenberg.org/ebooks/4300.kindle.images

I assume that the 99c one comes with some feature other than the text - e.g. convenience, formatting, something else.

The 99c is not a licence fee for the text of Ulysses, and if Amazon tried to sue me for having the Gutenberg version on my Kindle, they would get the Arkell v. Pressdram response.


it's perfectly fine charging public domain stuff(in the same way you can charge for distributing gpl'd stuff form third parties), call it a 'download fee' if that makes you uneasy


It is not simply that Getty is attempting to charge for the Photos

But rather Getty is Claiming Copyright over the photos, and are Issue Cease and Deist letters to anyone they find using the photos that did not pay Getty for a License.

So regardless of the status of Public Domain or not, Getty is not the Copyright Holder, and should not be issuing DMCA, or other Demand Letters claiming they are.


Anyone can reproduce and sell public domain stuff, which is how you get old books published. The problem comes when Getty claims copyright ownership over something they DO NOT own.


Then they should be able to show up to court with information on where they -did- get the images (because they didn't create them), and the photographer's release, of course...


> "Ms. Highsmith has stipulated that her photographs are in the public domain" - Library of Congress (http://www.loc.gov/rr/print/res/482_high.html)

> "Highsmith says she never abandoned her photo copyrights" -article

Yikes, that seems like a big misunderstanding. I would guess the LOC has a process to transfer the ownership of photos. If so, she probably signed away her copyrights without realizing it (???)

Either way, what Getty is doing is terrible and wrong. I don't see how she can sue for copyright damages if she doesn't have the copyright, but I hope they're punished for it. I'm not a lawyer, so someone please correct me if I'm misunderstanding something here.


I believe you are correct, but I suspect that's why she's not actually asking damages for copyright infringement, but for DMCA false copyright information. Anyone injured by that can sue:

https://www.law.cornell.edu/uscode/text/17/1203

It's a really big deal that this obscure section in DMCA (1202/1203) can be used for this, and I believe she has a good case.


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.


It's (probably) legal to charge for public domain photos, but I don't believe it is to send cease-and-desist letters over the use of public works.

From the comments >The Adventure of Tom Sawyer is public domain. Getty is publishing then the book and attacking anybody who uses the name Tom Sawyer in anything. They got caught when they filed a DMCA complaint against Mark Twain for having the book on his personal website.


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.


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.


Yea, this is an interesting effect. I wonder why there isn't an OpenSourceGetty company that charges a much lower fee for guaranteeing that the IP really is open source? They do the research leg work, and then you pay them $5 for a commitment to reimburse/defend you if you get sued.

I guess someone else could just try to free-ride off them by not doing the research, but honestly the legal commitment ("bonded open source") would be the valuable and expensive part.


Not legal to trawl the internet and find people using that photo, and make legal demands of licensing fees.

That's fraud and misrepresentation.


The article doesn't seem to touch on why Getty thinks they own the rights to the images. I'll toss out a few possibilities:

• Getty buys images from many people. Perhaps an unscrupulous individual bundled up a bunch of images from the library of congress, misrepresented their ownership, and sold them to Getty. (Bonus dickery to use a false identity so Getty can't find you to try to sue you back.)

• Getty could have bulk loaded up on hoards of public domain photos to sell to people looking for images. There's nothing wrong with that, curation has merit. But at some point they might have missed setting or checking the bit that says "we don't own exclusive rights on this one".

• Or the pitchfork and torch mob could be right.


Either of your explanations of negligence on Getty's behalf could be correct. IMO neither should mean they avoid the full charge for infringement/false attribution/fraud (whatever) for the attempt to sue people for using works Getty had no rights over.

Yes, it's fine they might have had a computer glitch that mislabelled things, yes they may have bought a batch of images with dodgy copyright/origin information.

But, at the point at which they instructed personnel to issue a demand notice for infringement there is no excuse for not first checking they actually owned the rights to the images in question. The deliberate avoidance of checking their rights prior to their negligent infringement demand - for a company whose raison d'etre is handling copyright and licensing of image - is well beyond the bounds of criminality. Ignoring the information presented to then that they were acting tortuously, makes for reckless infringement (at best) on a massive scale and should really be leading to personal criminal prosecutions for those who oversaw (or neglected to properly oversee) the creation of such systems.

The relevant investigatory powers should be inside Getty now looking to see if there is evidence that this was a known commercial practice of Getty to fraudulently misrepresent their ownership of other's copyright.


There's no such thing, no law that allows one to place their work in the public domain! Yes, you can attach a copyright license that allows one to use your work for any purpose, but you still retain the copyright.


You can waive your copyrights in which case you do not retain them. You can also, as you say, assign a public domain license and retain copyrights, but that isn't considered "public domain" per se.

'Examples for works actively dedicated into public domain by their authors are reference implementations of cryptographic algorithms,[6][7][8] NIH's ImageJ,[9] and the CIA's The World Factbook.[10] The term is not normally applied to situations where the creator of a work retains residual rights, in which case use of the work is referred to as "under license" or "with permission".'

https://en.wikipedia.org/wiki/Public_domain


Actually USA goverment works like the CIA World Factbook are public domain only inside USA. According to (S. REP. NO. 473, 94th Cong., 2d Sess. 56 (1976)) section 105 page 59

The prohibition on copyright protection for United States Govern­ment works is not intended to have any effect on protection of these works abroad. Works of the governments of most other countries are copyrighted. There are no valid policy reasons for denying such pro­tection to United States Government works in foreign countries, or for precluding the Government from making licenses for the use of its works abroad.


> Also, why the hell is Getty charging for public domain photos?

The article was not clear on where Getty got the photos. If they did not get them from the Library of Congress, they might not have known that they are (purportedly) public domain.


Regarding your first point: you can place an item into the public domain but retain the copyright. See some of the Creative-Commons licenses that allow free use but disallow commercial use of your IP.

Regarding your second point: Getty is a content distributor. When it comes to stock photos, many designers just go straight to Getty or one of its large competitors to browse for stock photos. The designers aren't going to know which of those photos are available freely and which are not. (By analogy, this is why you when you want to watch a movie, you immediately find it to rent on iTunes, as opposed to spending twenty minutes finding a decent pirated copy.)


> Regarding your first point: you can place an item into the public domain but retain the copyright. See some of the Creative-Commons licenses that allow free use but disallow commercial use of your IP.

That's not what public domain means.

> The term “public domain” refers to creative materials that are not protected by intellectual property laws such as copyright, trademark, or patent laws.

http://fairuse.stanford.edu/overview/public-domain/welcome/

> Works in the public domain are those whose exclusive intellectual property rights have expired, have been forfeited, or are inapplicable...The term is not normally applied to situations where the creator of a work retains residual rights, in which case use of the work is referred to as "under license" or "with permission".

https://en.wikipedia.org/wiki/Public_domain


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.


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...

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


> 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.


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.


The problem is not that they charged money for the photos. They can do that for public domain works. The problem is that they sent C&D letters to other people who used the same work, even though they were not entitled to.

But then, unfortunately, this could be filed as a simple DMCA notification error and would not entitle the author to 150,000$ in damages per work. She will receive only an apology. And this is how Getty gets to strongarm the less rich artists and only have to say "sorry" when they can't win.


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.


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.


>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.


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.


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

https://archive.is/Bmpg4


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.


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.


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.


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


> 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.


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.


DMCA 1203 doesn't require copyright ownership to sue. (check it)

I understand why you assume she needs a copyright, but read the actual complaint and causes of action. Indeed she sues for copyright and DMCA, but asks for damages under DMCA. If copyright fails, it doesn't affect the rest.


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.


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...


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

http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?articl...


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.


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


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.


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.


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.


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.




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