Photographer Sues Getty Images For $1 Billion For Claiming Copyright On Photos She Donated To The Public

from the one-billion dept

Getty Images has a bit of a well-deserved reputation as a giant copyright troll, sending all kinds of nasty threat letters to people who use the images that Getty licenses. And even though it’s showed some signs of adapting to the modern internet world, it hasn’t given up on its standard trolling practices. It’s also famously bad at it, often sending absolutely ridiculous threat letters.

But it may have sent one so stupid that it could potentially cost Getty itself a lot of money. That’s because it sent a threat letter to famed photographer Carol Highsmith… demanding she pay up for posting her own damn photo. That would be bad enough on its own… but it’s actually much, much worse. You see, Highsmith is such a wonderful person that she donated a massive collection of her photographs to the Library of Congress — over 100,000 of them, for them to be released royalty free for the public to use. She didn’t put them fully into the public domain, though, instead saying that anyone could use them so long as they gave credit back to her. It was basically a very early kind of version of what’s now known as the Creative Commons Attribution License (which didn’t exist at the time she made that agreement with the Library of Congress).

And, so here was Getty Images claiming that it held the copyright on these photos, demanding that Carol Highsmith pay up for using her own photograph, which she had deliberately donated to be used freely.

That’s… not legal.

So Highsmith is now suing Getty Images for violating Section 1202 of the DMCA (part of the DMCA that doesn’t get nearly as much attention) for falsifying copyright management information.

The Defendants have apparently misappropriated Ms. Highsmith?s generous gift to the American people. The Defendants are not only unlawfully charging licensing fees to people and organizations who were already authorized to reproduce and display the donated photographs for free, but are falsely and fraudulently holding themselves out as the exclusive copyright owner (or agents thereof), and threatening individuals and companies with copyright infringement lawsuits that the Defendants could not actually lawfully pursue.

As described further herein below, the conduct of the Defendants runs afoul of the DMCA?s provisions proscribing the removal, modification and falsification of ?copyright management information,? unlawful conduct that has injured Ms. Highsmith, thereby entitling Ms. Highsmith to the relief sought herein.

The lawsuit notes that despite informing Getty that it was in the wrong, the company continued to demand money from other people making use of her photographs. She also notes that this is not the first time Getty was found to be violating DMCA 1202, and that justifies a much larger monetary punishment.

Getty has committed at least 18,755 separate violations of 17 U.S.C. § 1202, one count for each of the 18,755 Highsmith Photos appearing on Getty?s website. Thus, Ms. Highsmith is entitled to recover, among other things, and if she so elects, aggregate statutory damages against Getty of not less than forty-six million, eight hundred eighty-seven thousand five hundred dollars ($46,887,500) and not more than four hundred sixty-eight million, eight hundred seventy-five thousand dollars ($468,875,000).

The unlawful conduct complained of herein is not Getty?s first violation of the DMCA, codified at 17 U.S.C. § 1202.

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.

Getty must therefore account for well over one billion dollars ($1B) in statutory copyright damages in this case.

The $1 billion number is a bit extreme, but it is true that Getty doesn’t seem to care at all, and has been shaking down people for ages, sometimes over rights it does not hold. As the lawsuit notes, since Getty doesn’t seem interested in changing its practices, perhaps a more stringent award is necessary.

If you’re wondering about the previous case mentioned above, it’s another one that we covered — the weird and wacky case involving photos from Daniel Morel that were taken in Haiti, leading to a mess of a lawsuit (where almost everyone was totally confused at the beginning) that ended in Getty having to pay up for distributing a photo with incorrect attribution.

The lawsuit also goes after a smaller Getty competitor, Alamy, that is doing the same thing, and some Getty subsidiaries, LCS and Piscount, who, again, are doing the same thing (in fact, the threat letters Highsmith received were from Piscount and LCS). To make matters even more confusing, even though Alamy is a Getty competitor, it uses a Getty subsidiary, LCS, to send out threat letters demanding cash. The lawsuit explains that Highsmith called up LCS and had to talk with them for half an hour convincing them that she was the photographer, she holds the copyright and the images are all available royalty free for anyone to use (with credit back to Highsmith). LCS then informed her that the case against her “was closed” but… continued to shake down others using her images. That makes things look even worse for Getty in this lawsuit, because she can show at least some level of knowledge that they were making fraudulent copyright claims.

This should certainly be an interesting case to follow…

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Companies: alamy, getty images, lcs, piscount

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Comments on “Photographer Sues Getty Images For $1 Billion For Claiming Copyright On Photos She Donated To The Public”

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Bergman (profile) says:

Re: Re:

Everybody does this. The US puts ISDS into treaties and expects nobody will ever use it against them. Democrats/Republicans issue abusive executive orders or pass abusive legislation on the presumption that the other party will NEVER retake office and use those abusive new powers against them.

Why should copyright maximalists be any different? Especially given their claims that it’s EASY to avoid committing copyright violations. If they actually believe their own propaganda on that, it’s not surprising that they’d routinely trip over copyright laws and cruel & unusual statutory damages.

Anonymous Coward says:

A new business model?

– Post your own images online with a creative commons license.
– Use them on your own and friends’ websites.
– Wait until Getty (or similar) tries to shake you down.
– Have a polite conversation with the troll, getting them to drop their claims against you because they’re your photos.
– Wait until friends are trolled.
– Sue the troll
– *PROFIT*!!!

orbitalinsertion (profile) says:

After i saw this yesterday, i did a quick search for giggles. Straight off i found a book that gives a photo attribution to Carol M. Highsmith/Buyenlarge/Getty.
TIME Inside the White House- The History, Secrets and Style of the World’s Most Famous Home

You can find it in Google Books. The credits page is at the back, the image is at the beginning of the introduction.

David says:

Interesting "charitable" behavior

Of course getty will shake down its other customers for recovering any awards here, making anybody relying on its large offerings bleed here.

That being said: this seems like a straightforward application of the relevant laws, one cannot seriously consider her acting in willful entrapment and there is no way to construe Getty’s actions other than out of malicious and willful continuing disregard of the law.

It will be quite interesting to hear Getty argue why the deuce they should not be punished according to the laws they use as justification for enforcing their profits.

Corporations really have to learn that they don’t own the world without even bothering to keep up their part of the deal.

That One Guy (profile) says:

Re: Interesting "charitable" behavior

Corporations really have to learn that they don’t own the world without even bothering to keep up their part of the deal.

The problem is that they have learned, in particular they’ve learned that if you have enough money and/or the right connections you can pretty much do whatever you want without repercussions, and at most you might have to throw some sod to the wolves and pretend to be so very sorry that you got caught doing something.

That One Guy (profile) says:

'Please hold all apluase until after the high-court treatment is handed out.'

Yeah, as much as I’d love to see Getty absolutely hammered here for blatant and flagrant commercial copyfraud, they’re a big company, so I don’t see more than a wrist-slap handed out for their ‘accidental mistake’, certainly not anything even remotely in the range anyone asked for, whether just a few hundred million or the higher amount of one billion.

Meanwhile individuals will continue to be slammed with insane fines for accidental or intentional copyright violations, because those that violate copyright must pay!

Yet another case where I’d love to be proven wrong, but fully expect to showcase once again high-court/low-court treatment.

Anarres (profile) says:

Re: 'Please hold all apluase until after the high-court treatment is handed out.'

Yeah, I don’t disagree. But, as noted in the complaint and this article, Getty has been sued before for misattributed photos, also by an individual photographer.

Carol Highsmith is a known name, not Jane Doe. While a Jane Doe deserves her rights vindicated just the same, I admit I believe the whole context here matters to a judge.

David says:

Re: 'Please hold all apluase until after the high-court treatment is handed out.'

I’m not all too sure about that. The rationale for having these laws that individuals are slapped around with when filesharing etc is actually more or less exactly aimed at the kind of reckless commercial unabated systematic copyright infringement Getty does here, and so are the rather lame DMCA provisions for false representation.

If Getty is let off the hook here this would indicate that all the justifications for the penalties were a lie to start with.

And once that is established in binding court precedent, Getty is in a whole lot more trouble regarding their business model. So Getty cannot afford to win this case. They also want to continue with their extortion model, and losing this case as well as having to take the punitive penalty would be a rather strong hit, and they are straight in the bullet eye of the law here.

There will be a settlement with confidential terms. It will still set up a model for other litigants but at least not for other judges.

That One Guy (profile) says:

Re: Re: 'Please hold all apluase until after the high-court treatment is handed out.'

There will be a settlement with confidential terms. It will still set up a model for other litigants but at least not for other judges.

Ah right, can’t believe I forgot about the ultimate ‘Get out of unwanted precedent’ ploy of settlements.

Company does something that might get them into hot water.
Someone takes them to court over the matter.
Rather than risk a ruling that might be actually damaging and/or set a precedent they don’t like, they throw money at the problem and watch it disappear.
And like that, ruling and precedent avoided, and all it took was some pocket change.

R.H. (profile) says:

Re: Re: 'Please hold all apluase until after the high-court treatment is handed out.'

I wonder if she’d be willing to settle though. The entire point of this case seems to be making sure that Getty (and others in the same industry) don’t keep doing what they’re doing. The best way to do that is by winning a case in court, not just getting a sealed settlement without an admission of guilt.

PaulT (profile) says:

Re: Re: Re: 'Please hold all apluase until after the high-court treatment is handed out.'

The problem, of course, is that these companies tend to have lawyers who specialise in stalling cases until the poorer side runs out of money and is forced to settle. She probably won’t settle up front, but she also probably doesn’t have as much money as Getty have in their legal fund.

Snapper (user link) says:

Lying through Ars

There’s this lesson in why you shouldn’t tell obvious lies from Ars Technica’s report:

Sarah Lochting, Getty Images vice president for communications, sent Ars a statement which said that the lawsuit was “the first time Getty Images was made aware of the matter. We are currently looking into these allegations with the aim of addressing these concerns as soon as possible.”

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.

That One Guy (profile) says:

Re: Lying through Ars

“Oh uh… we just… share the building… not the rent of course, but the building. Also we had no idea who they were before you told us, we had been wondering who those strangers were that were wandering in and out of the building.”

Sounds like they expected Ars to just take their claims at face value and repeat them without any fact checking like the ‘good’ news agencies would have, and had no idea what to do when the lie was called.

Anonymous Coward says:

Re: Re: Lying through Ars

“the first time Getty Images was made aware of the matter. We are currently looking into these allegations with the aim of addressing these concerns as soon as possible.”

A good starting point would be to figure out how tens of thousands of photographs just appeared in your collection without the legal niceties like copyright assignments.

Anonymous Coward says:

As a hobby photographer who will publish my photos on my site under a creative commons licence, what could I do to defend myself/make it super easy to prove I own the pictures? I know the chance of my stuff being downloaded is close to zero, but you never know. When will getty (or other troll)just scrape the internet of pictures and start threatening people with lawsuits?

Fucking bastards, if it is any time tremble damages can be justified, it is for stuff like this. Stealing stuff from all of us and demanding payment for doing it. Disgusting

Anonymous Coward says:

Just like the Happy Birthday song, only with pretty pictures

I hope that Getty gets hammered on this. Not sure about the $1 billion dollar number, but it certainly needs to be high enough to hurt and make them think twice about doing it again.

If content companies want the sheeple to respect copyright, they need to learn to respect copyright.

Anonymous Coward says:

I am not going comment on whether Getty Images practices or whether they deserve this lawsuit or not but rather on the true definition of “Royalty Free”.

“Royalty Free” or RF doesn’t mean completely free, take it and do whatever you want with it.

It means you pay a licensing fee at the outset but you don’t have to pay each time you use it after that. You don’t continue to pay royalties, hence “royalty free”.

According to Wikipedia the definition is as follows.

“Royalty-free, or RF, refers to the right to use copyright material or intellectual property without the need to pay royalties or license fees for each use or per volume sold, or some time period of use or sales.”

Take a look at any stock photo agency licensing agreement or speak to any lawyer who specializes in copyright or intellectual property rights law.

PaulT (profile) says:

Re: Re:

I’m not sure what you’/re getting at here. Are you saying Getty were OK to charge for the images so long as they didn’t pay royalties? Or, are you just really struggling for something to split hairs over?

“It means you pay a licensing fee at the outset but you don’t have to pay each time you use it after that”

…and the licencing fee was agreed to be $0.

Anonymous Coward says:

Semi related, but…

I’ve recently been annoyed by Getty since their emails started suddenly getting through my spam filter. And there’s no “unsubscribe” option. Only a message saying to log into their site. Yet I can’t because they’ve bought Thinkstock and other companies that held my original account, and therefore have multiple accounts under my single email address, and none of my password reset emails seems to get through to me.

I’m not sure how they get away with this given that I don’t want to see their emails but I have no option to unsubscribe other than logging into my account which I can’t access.

I know CAN-SPAM allows for mailing lists etc. but aren’t they supposed to make it possible to unsubscribe?

That Anonymous Coward (profile) says:

It would be a pity if discovery for the case lead to an audit of more images they claim to control, and showed a pattern.

Wouldn’t the DoJ be forced to pursue claims similar to the Megaupload clusterfuck? A business stealing others content, committing copyfraud, profiting for years. IP is our most valuable asset so the total destruction of the Getty empire would be a fitting result for those who abuse the law to profit from the works of others.

David says:

Re: Re:

Well, the Naruto case moral is that whenever there is something worth sharing, there should be someone getting as much money from it as possible.

Carol Highsmith has decided that she would not be the person getting as much money from her images as possible, so she basically has stopped counting as human and Getty stepped up the plate in order to prevent a vacuum (the world is full of suckers). Because Getty is the PETA of Public Domain.

Royal Scam Steely Dan Fan says:

Copyright Fees Paid?

Did this photographer pay the fee for each photograph’s copyright? Also being that she donated these to Library of Congrss before Creative Commons Law, did she have agreement signed by authorized agent for Library of Congress?

Probably dumb questions, just trying to imagine how Getty could weasel out of this lawsuit.

Chris Brand says:

LoC disagrees with Highsmith

The lawsuit states “At no time did Ms. Highsmith intend to abandon her rights in her photographs,
including any rights of attribution or rights to control the terms of use for her photographs”

Looking at the Library of Congress “rights and restrictions” page (, though, it pretty clearly states that the images are public domain:
“Carol M. Highsmith’s photographs are in the public domain.” and “Ms. Highsmith has stipulated that her photographs are in the public domain.”. That could be a mistake, of course, but they’re usually pretty careful about that sort of thing.

Of course that doesn’t mean Getty is in the right, but it could certainly weaken her claim (not giving credit would be perfectly legal, for example).

Anonymous Coward says:

Re: LoC disagrees with Highsmith

Carol M. Highsmith’s photographs are in the public domain.” and “Ms. Highsmith has stipulated that her photographs are in the public domain.”. That could be a mistake, of course, but they’re usually pretty careful about that sort of thing.

The contents of Exhibit B, which are presumably included with the papers (but not included in the embed), will show the court what sort of legal agreement existed between Ms. Highsmith and the LOC…and the LOC has been wrong before (well, ok, the US Copyright Office, which is part of the LOC), so I wouldn’t necessarily point to their statements as the end all in this regard.

The lawyers and the judge will have to determine what the agreement actually said.

Anarres (profile) says:

Re: LoC disagrees with Highsmith

The instrument of gift is this:

Yes, it will be a problem. Notice that it says sometimes she gave copyrights to the public, and then that she will be credited, and the library has restrictions on reproduction.

I expect the judge will have to rule on what the agreement really means.

The amazing part here is that Carol Highsmith still has standing to sue according to DMCA 1203, which says that “any injured person can sue”, for false copyright management information. Even if the judge rules that the collection is in the public domain, she has been injured by Getty fraudulently chasing people down over her donated work.

Incidentally, I think the Techdirt should pay attention to the agreement, and post about it. The article assumes the copyright situation is clear and believes the complaint allegations fully, but this agreement will be problematic.

Anonymous Coward says:

Note, incidentally, that criminal copyright infringement (17 U.S. Code § 506, 18 U.S. Code § 2319) is a Federal RICO predicate offense (18 U.S. Code § 1961).

Were I a member of the relevant US Attorney’s Office, I would certainly consider throwing a few subpeonas in Getty’s direction to check if there was any “willful infringement . . . for purposes of commercial advantage or private financial gain”.

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