Getty Makes Nonsensical Statement On Photographer Carol Highsmith's Lawsuit For Falsely Claiming Copyright

from the say-what-now? dept

As you may recall, we just recently wrote about photographer Carol Highsmith’s copyright lawsuit against Getty Images, for falsely claiming copyright in her images (and demanding she pay to use her own images…) which she had purposely donated to the Library of Congress to make them available for the public to use, royalty-free. A PR person from Getty has reached out to us and pointed us to Getty’s completely nonsensical “statement” on the lawsuit (and, actually, the email pointed us to the wrong URL, but we found it anyway).

We are reviewing the complaint. We believe it is based on a number of misconceptions, which we hope to rectify with the plaintiff as soon as possible. If that is not possible, we will defend ourselves vigorously.

The content in question has been part of the public domain for many years. It is standard practice for image libraries to distribute and provide access to public domain content, and it is important to note that distributing and providing access to public domain content is different to asserting copyright ownership of it.

LCS works on behalf of content creators and distributors to protect them against the unauthorized use of their work. In this instance, LCS pursued an infringement on behalf of its customer, Alamy. Any enquiries regarding that matter should be directed to Alamy; however, as soon as the plaintiff contacted LCS, LCS acted swiftly to cease its pursuit with respect to the image provided by Alamy and notified Alamy it would not pursue this content.

First of all, huh? “The content in question has been part of the public domain for many years”? Actually, it has not. As Highsmith noted, she retained the copyright to her images, but rather did a deal with the Library of Congress to make the works available royalty free. It was basically a Creative Commons attribution license before Creative Commons existed. She still retains the copyright. So the images are not public domain.

And, uh, even if they were, what a weird claim for Getty to make, because it was a Getty subsidiary that then threatened Highsmith for posting her own images. If Getty now claims it believes the images were in the public domain, why was it shaking her down for money? This makes no sense at all.

Finally, trying to pawn blame off on Alamy is ridiculous. Alamy is a co-defendant in the lawsuit, but LCS and Piscount are both subsidiaries of Getty, and both sent Highsmith letters demanding payment. It’s almost as if Getty’s PR people have absolutely no clue what they’re talking about.

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Companies: alamy, getty, lcs

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Comments on “Getty Makes Nonsensical Statement On Photographer Carol Highsmith's Lawsuit For Falsely Claiming Copyright”

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That One Guy (profile) says:

Just can't make this stuff up

LCS works on behalf of content creators and distributors to protect them against the unauthorized use of their work.

Can’t help but absolutely love this line, given the context it’s being made in. They attempted to shake down the person who took the photos, the ‘content creator’, by claiming to own the rights to the photos. That’s some Class A protection of content creators there, that’s for sure

It is standard practice for image libraries to distribute and provide access to public domain content, and it is important to note that distributing and providing access to public domain content is different to asserting copyright ownership of it.

“I didn’t throw a bucket of water on that person, I used a metallic container to apply a liquid to the surface of their skin!””

If you’re threatening someone and demanding they pay up for using something then for all intents and purposes you are claiming ownership over it, as you’re asserting that you own the rights to it, and use of it requires payment to you.

An argument like the one they are making would only even begin to make sense if there was only one repository of the content in question, them, which would rather render moot the public domain status so long as that held true. In that case public domain or not they’d be in a position to charge for access(though whether or not they’d have grounds to assert ownership of any copies would be up for debate I’d think), despite not actually owning the exclusive rights to the works in question.

This however was not the case here, it was entirely possible to gain access to the pictures in a way that had nothing to do with them, meaning they were ‘mistakenly’ asserting a falsehood at best by claiming that the photographer, or anyone needed to pay to post the pictures in question.

That One Guy (profile) says:

Re: Re: Just can't make this stuff up

Public domain means anyone can use them however they like, up to and including selling them, so sure. What you can’t do is try to claim ownership rights over it, demanding payment for it’s use, as that would rather defeat the purpose of the public domain.

You can insist that your particular version, only obtainable through you requires payment, but you can’t lay claim to the underlying work and demand payment for any general use, as seems to have been the case here.

Hypothetical example time:

Shakespeare is in the public domain. I create a collection of his plays, put them into book format with some commentary, maybe a spiffy cover, and offer it for sale. I have the copyright on the commentary and potentially the binding(assuming new illustration rather than one from the time-period), so if someone just copies the whole thing, commentary and all I can go after them for that. I cannot however do anything whatsoever to stop anyone else from putting together their own book with Shakespeare plays in them, as I utterly lack any exclusive rights to that part of the book, the public domain part.

David says:

Re: Re: Just can't make this stuff up

Of course you can. What you cannot do is send me cease-and-desist letters for distributing works in the public domain regardless of how I attained a copy.

Even if I broke into your servers to get them. You can get me in jail for breaking into your servers. But not for distributing material in the public domain.

Brian Thomas says:

Re: Just can't make this stuff up

Content creators AND Distributors.

In this case it was the distributor. It’s terrible that they sent a letter to her organization, someone wasn’t using their brain.

I have sold public domain images via Alamy in the past. When I upload the image, I never claim copyright ownership of it. When an image of mine is sold i.e. a NASA image I uploaded, I have it where the credit line says NASA IMAGES. Others have it say NASA LIBRARY etc.

There is a copyright symbol before that name which isn’t exactly how it should read since NASA doesn’t own the copyright because they are a government agency.

When I distribute such pictures on my own stock photo site, I have no copyright notice, just a line that reads Credit: NASA / Stock photo site name

I think it’s totally wrong for Getty or Alamy to go after users of public domain images that can be found at the Library of Congress.

However, if it is an image that is found/ was found/ on Alamy which was fixed up i.e. dust spots from Carol Highsmith’s photos may have been removed etc. (her photos have many dust spots as I’ve seen many in blue her blue skies), that type of photo used by someone could be proven to have been taken off the alamy site without the payment of a license. For that, I think a letter might suffice.

However, if the images cannot be proven to be taken from the Alamy site after some change made in the photo itself, no letter should be sent to the users of the photos.

But licensing public domain photos is not illegal. And the usage of PD photos is almost always editorial and not commercial and never Royalty Free.

Just my thoughts.

That Anonymous Coward (profile) says:

Gee, one might think they are a copyright troll.

Invent “different” companies to execute the shakedown, funneling the cash back to the parent company.
If anything goes wrong, sacrifice those “different” companies… since they are hollow shells with no assets left no harm comes to the mothership.

They spend so much time screaming how people are stealing from them, yet think nothing of stealing from the public. They took something that did not belong to them and worse than most ‘pirates’ actively made money off of them. Commercial copyright violations, copyfraud, and an extortion scheme… yet I bet there will be no one championing the public in this by fixing the laws.

I do hope the case goes forward, given the number of photos they stole from the public from this one photographer it would be wrong to not vette all of the photos they claim ownership over. Willing to bet she isn’t the only photographer who’s work they illegally profited from, she was just the one they were stupid enough to go after.

Anonymous Coward says:

Re: Re:

They are worse that a copyright troll, as they are claiming that they can license use of photographs inside other peoples works, when they do not have control over the copyright licensing for the work. If they have done so for these works, what other works have they made fraudulent claims of being able to issue a license for, and when will a licensee be sued for copyright infringement over a work they thought they had a valid license to.

DannyB (profile) says:

Artists need to get paid

From TFA . . .
> LCS and Piscount are both subsidiaries of Getty, and both sent
> Highsmith letters demanding payment. It’s almost as if Getty’s
> PR people have absolutely no clue what they’re talking about.

If Highsmith had sent a payment to Getty would she have received:
1. all of that payment back
2. a portion of that payment back
3. none of that payment back

Or asked a different way. When Getty charges for a public domain work, and they know it is public domain, do they keep all of the payment for themselves?

What if it is NOT a public domain work, but is available royalty free? Can Getty charge a large fee for it, but keep all of that fee, claiming it is not a royalty, but merely a ‘service’ fee for providing access to the royalty free copyrighted work?

Can Getty’s system even keep track of whether a work is covered by copyright, and whether a copyright work is royalty free? If so, would it be advantageous for Getty to make those images available for free as a convenience to their users. Or is CwF+RtB too radical and idea, or perhaps simply inconceivable.

And as a final question, why would anyone expect PR people to have any clue about what they are talking about? Doesn’t such an expectation seem prima facie unreasonable?

Anonymous Coward says:

Re: Artists need to get paid

–What if it is NOT a public domain work, but is available royalty free? Can Getty charge a large fee for it, but keep all of that fee, claiming it is not a royalty, but merely a ‘service’ fee for providing access to the royalty free copyrighted work?

The images discussed here required that attribution was given for them to be royalty free. Getty was not meeting the terms of the license thus did not have a license to do anything with these images.

Unless it was against the terms of the license I’d see no problem charging a ‘service’ fee provided you meet the terms of the license that allows you to distribute the images in the first place.

Violynne (profile) says:

Look at the bright side, Mike.

If this case does go to trial, Getty images just put their own foot in their mouth by admitting they believed the images to be in the public domain and were charging people for it.

There’s no way to excuse this now.

Hopefully, the lawsuit is so damaging, Getty becomes a footnote in the annals of internet history.

orbitalinsertion (profile) says:

It’s almost as if Getty’s PR people have absolutely no clue what they’re talking about.

That’s the method of operation. It’s been more popular than ever (anecdotal observation) the last 20 years or so. Somehow it works often enough that the practice of (including but not limited to)repeating, insisting, making no sense, making claims contrary to established facts (even those backed by quantitative evidence), and self-contradiction is a thing. Just speak with authority.

Anonymous Coward says:

Getty has obviously been taking lessons from MPAA and RIAA. they are both keen to claim copyright on stuff that isn’t theirs, charging money they shouldn’t charge and issuing lawsuits whenever possible. let’s hope she takes the case to court and screws Getty and the subsidiaries good and proper!!

That One Guy (profile) says:

Re: Re:

Yeah, purely a coincidence I’m sure, but the ‘Copyright is the Best Thing Ever’ lot seem to be rather silent on this matter so far, though if they are crazy enough to show up I fully expect them to do as you say and defend Getty, because while copyright violations on an individual basis are terrible acts enough to destroy economies, large-scale commercial copyfraud is absolutely acceptable when a big company does it.

Brian says:

Re: Since 1992 isn't "many years"

FROM THE LIBRARY OF CONGRESS WEBSITE:

Highsmith, a distinguished and richly-published American photographer, has donated her work to the Library of Congress since 1992. Starting in 2002, Highsmith provided scans or photographs she shot digitally with new donations to allow rapid online access throughout the world. Her generosity in dedicating the rights to the American people for copyright free access also makes this Archive a very special visual resource.

These are “copyright free” not “royalty free”

There have never been any limitations on the use of these photos since they were put into the public domain. Anyone could license them if they wanted to do so. You could use them in any way except for commercial use. Commercial meaning endorsing a product, not simply selling a license to use them.

But these images have been in the public domain for 25 years.

Anonymous Coward says:

This is one time where I have to side with Carol Highsmith. The problem is Getty. Alarmy and ALS were workign as agents of Getty and they royally screwed this up by demanding that the owner of the image to which she allowed to be available in the public domain tried to shake down the very person who owns the image.

The lawsuit she filed was in response to Getty, Alarmy and ALS trying to shake down Carol Highsmith. While I don’t agree with the amount she’s trying to sue for, Getty should be ashamed of themselves for putting this on Alarmy and ALS. They were acting as agents for Getty and Getty should have been aware of what was going on.

I’m guessing that Getty was very well aware of what was going on and that they are now trying to backpedla of this this PR disaster that they created.

This is like Warner Brothers suing Phil Collins for singing his own music at a concert. It’s ridiculous that Getty allowed such a thing as this to happen. Getty saying they wouldn’
t follow through with the $120 licensing fee is ridiculous on its face because it should never have come to that in the first place.

Bergman (profile) says:

Re: Re:

The term ‘public domain’ has a specific meaning, and those images are not (and never were) in the public domain.

The amount she is suing for is no more and no less than the amount specified by the statute she is suing under. If you have a problem with the dollar amounts, blame the people who lobbied for those laws (hint: Getty is one of the companies behind those lobbyists).

Anon says:

Re: Re: Re: RIGHTS AND RESTRICTIONS PAGE AT LIBRARY OF CONGRESS

Disclaimer: IANAL, nor am I remotely an expert on American Copyright law.

That said, I’m sure it has been stated here many times, under US Copyright law it is impossible (for anyone) to stipulate that an object is under Public Domain unless the copyright has expired. Ccopyright is immutable which is one of the reasons why Creative Commons came about.

Am I wrong?

Anarres (profile) says:

Re: Re: Re:2 RIGHTS AND RESTRICTIONS PAGE AT LIBRARY OF CONGRESS

Yes, it’s wrong. Courts have said that it is the prerogative of the copyright holder to renounce their rights, by making a very clear statement to that effect.

Part of the reason for the strange doubt that it’s “possible” is that after Berne implementation act (1989) there hasn’t been, to my knowledge, a case litigated successfully, that decided that x language is clear enough. So maybe the problem, if there is a real problem, is that we don’t know what language exactly will convince a court today.

Anonymous Coward says:

It IS in the public domain

“First of all, huh? “The content in question has been part of the public domain for many years”? Actually, it has not. “

Actually, it is. Here’s the word from the Library of Congress:
https://www.loc.gov/rr/print/res/482_high.html

And here’s the language used in the Instrument of Gift:
“I hereby dedicate to the public all rights, including copyrights throughout the world, that I possess in the collection”

I can’t see how a copyright infringement case can move beyond the first attempt to dismiss it if Ms. Highsmith is not the copyright holder of the work.

DocGerbil100 (profile) says:

Re: It IS in the public domain

This needs to be examined. It looks like Ms Highsmith is saying one thing and the LoC is saying another.

If Ms Highsmith did commit her works to the public domain, then she may not have standing to sue over copyright, as such.

If Ms Highsmith did not, in fact, commit her works to PD, then I suspect the LoC needs to be added as a joint defendant, since they appear to be claiming she did.

Getty is not off the hook, either way: their demands for money for images they don’t own is a clear, fraudulent assertion of ownership, regardless of any tricky word-games they might play to give themselves plausible deniability.

As far as Ms Highsmith is concerned, she’s – at bare minimum – a victim of attempted fraud and undoubtedly entitled to sue on that basis.

As far as the FBI is concerned, Getty is engaged in systematic, wholesale criminal fraud, certainly on a nationwide basis and possibly worldwide. Whether they’ve an appetite to prosecute or not, there are Getty executives who need to go to jail for this.

I won’t miss them.

Anonymous Coward says:

So how DO you find the copyright status of a Gettyimages image?

That is, if you choose a random image from them, how do you find a) who really holds the copyright, b) what is the date of that copyright (if any)?

Do you have to rely on Gettyimages? It would seem they’d have every reason in the world to bluff, bluster, and lie. … until they get caught, that is.

Is your only other proactive avenue to do a worldwide search of your own? (Or rely on Google image search?)

PaulT (profile) says:

Re: Re:

How do you find the true status of any media or product?

You don’t know if the store you just bought your TV from was dealing with stolen, grey import or counterfeit products, you generally have to take their word for it. Sure, it’s going to be less likely that the Wal Mart TV you just saw is going to be stolen than one from a dodgy back street market, but you have to trust Wal Mart’s supply chain for that to hold true.

Same thing here, you really have no way of knowing exactly how Getty obtained the original images, but you trust that they are more reputable than doing a random search. If their reputation becomes suspect, choose another repository with a better reputation.

Quiet Lurcker says:

AC –

Re the damages Getty should have to pay, I’d say the demanded sum is low by several orders of magnitude. Getty knew what they were up to, yet did it time after time and time again. Who can say how many people took it in the shorts over their “deal”?

No. That company needs to be driven to liquidation and eventually out of business for a stunt like this.

Brian says:

Re: please note

Below is from the Library of Congress. There are no restrictions on the use of her images other than normal restrictions limiting the use of her or any public domain images from being used to advertise or endorse a product. Also since these are public domain images with property or people in them, they cannot and never will be able to be used royalty free. You’ll see from the notice below, her images are copyright free, meaning no copyright i.e. Public Domain.

FROM THE LIBRARY OF CONGRESS (regarding her collection):

Highsmith, a distinguished and richly-published American photographer, has donated her work to the Library of Congress since 1992. Starting in 2002, Highsmith provided scans or photographs she shot digitally with new donations to allow rapid online access throughout the world. Her generosity in dedicating the rights to the American people for copyright free access also makes this Archive a very special visual resource.

Anonymous Coward says:

Silly Mike

> It’s almost as if Getty’s PR people have absolutely no clue what they’re talking about.

The simplest explanation for this missive is that they fully know what they’re doing, but are hoping to bamboozle you because they know they don’t have a leg to stand on. It didn’t work, but they’re hardly any further behind, are they?

When it comes to copyright in the land of the (someone must own it so it can’t be) free, the old saw should be “Never attribute to incompetence what can be adequately explained by greedy, self serving, maliciousness.”

John85851 (profile) says:

What about everything else?

I don’t know if this has been brought up yet, but what about everything else on the Getty website? After all, if they can do this to her, is it standard practice there and how many other people have they do it to? Should customers be wary about buying anything since there’s no real way of knowing if the image is in the public domain or if Getty is even the correct license-holder.
I think this case needs to create a new class-action lawsuit over any other images that may also be in the public domain which Getty is improperly licensing.

Anarres (profile) says:

I’m surprised that the second article on Techdirt on this lawsuit still doesn’t address the actual terms of Carol Highsmith’s gift:
https://www.documentcloud.org/documents/2999595-Gov-Uscourts-Nysd-460787-1-2.html

If you take a look, you will understand why unfortunately, a judge will have to interpret this contract, and the result isn’t open and shut.
The interpretation might be: 1) Carol kept copyright and gave a license to LoC and the public; 2) Carol granted all copyright to LoC in exchange for it making it available for free to the public; or, 3) Carol relinquished copyright and the work is the public domain.

On the bright side, Carol is suing under DMCA 1203, which says “anyone harmed can sue”, she’s not suing as copyright owner. So she has standing, in all 3 options.

But it will be difficult to prove the causes of action if the court will decide option 3.

Buttons says:

Re: Re:

Her DMCA claims require violation of her 1202 rights “with intent to facilitate infringement.” So if the court decides number 3 (public domain) she will have a problem with her DMCA claims because there is no potential infringement.

If her case gets tossed, maybe she could refile with some state law fraud claim. Of course, it won’t be 18,000+ photos just the one they tried to license to her. Maybe she could get $100. 😉

Todz (profile) says:

Re: Re:

I’m no expert in copyright law, but I think your option 3 may well prove not to be relevant.

Highsmith gave ownership of the physical transparencies etc to the LoC.(the use of the word “title” makes that clear), under terms that are specified which includes the right of access/copy by the public, but on terms set and determined by the library.

Highsmith also said that she dedicates “all rights, including copyrights” to the public. That has to be read as being that she has extended her copyright to the public but has NOT removed or deprived herself of any rights she has as the copyright owner.

Getty et al could say that they hold the copyright as they are part of “the public”. But as everyone else in the US is also the public then they’d have difficulty in asking for payment of a licence fee to use the image and mentioning copyright law – and that’s exactly what they did.

The Judge will go for option 1 as it makes more sense.

countryboy (profile) says:

Public Doman

One issue i have not seen addressed here: Getty and Alamy are addressed (equally?), but I don’t see the connection between the two in this case, or in any case. Is it claimed that Getty was sub-licensing these images via Alamy, or vice-versa? I am a contributor to both of them and have learned from one that it is quite possible to ‘donate’ your images to the Library of Congress while still retaining the copyright. I was given several examples of prominent photographers whose estates had donated the images, prints, and negatives (permitting the LOC to distribute those images) while still retaining the right to license them.

Eponymous Coward (profile) says:

Re: Re: Public Doman

Salient bit from the earlier article:
“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.”

Anarres (profile) says:

Re: Public Doman

Both Getty and Alamy put their own copyright over the photos, and LCS shook down people for money for “infringement”.

LCS is Getty. It appears to be a name under which Getty operated for a while, without any other incorporation than Getty. I believe it was a department within Getty, or so it looks like, in 2015.

It appears that in March 2016, LCS was incorporated. It might have been Getty’s intention all along to incorporate LCS as a new company, but it did that only recently, and some internet commentators noticed that 3/4 owners of LCS are Getty’s too, even after incorporation.

Brian Thomas (user link) says:

RF Images

From what I understand about photography, no images can be used royalty free if they have any people in them (unless model released) and no images can be used royalty free if there is any property or copyrighted symbols, trademarks etc in the images.

Any image of Carol Highsmith’s that is not a landscape cannot be used royalty free.

Also, the Library of Congress puts limitations on images in their “rights and restrictions” page if the creator of a work has limited their usage i.e. the images cannot be used commercially, or cannot be published in magazines or newspapers, etc.

Carol Highsmith probably donated the images not knowing much about the idea of Public Domain for example saying they were meant to be royalty free.

I hope her lawsuit gets thrown out even though I totally understand her anger towards the cease and desist letter. That is actually ridiculous they did that.

Beeswax 5000 says:

Re: RF Images

people in the photos zas zip to do with copyright. You can use all the photos royalty free.

That doesn’t mean you can use someone’s likeness for trade or advertising purposes. All the 50 states would have their own state law prohibition on that. You would need a release. Whether or not you have to pay is up to the person whose image you are intending to use.

FactChecker SAM says:

Not a clear cut case at all

“As Highsmith noted, she retained the copyright to her images, but rather did a deal with the Library of Congress to make the works available royalty free.”

Not so fast.

What a plantiff “notes” as you call it in a complaint, aka a factual ALLEGATION, is not a fact until the trier of fact decides it is.

Exhibit B to her Complaint states, among other things, that she “dedicate to the public all rights, INCLUDING COPYRIGHTS (emphasis added) throughout the world, that I possess in this collection.”

The Copyright Office at the Rights page concerning her photos says “Highsmiths photographs are in the public domain.”

If she was convinced she retained copyright why no allegation of infringement ? Only the DMCA claims ? Inquiring minds want to know.

Anarres (profile) says:

Re: Not a clear cut case at all

There are allegations of infringement too, just not as basis for damages. There’s another reason for that: the photos were probably not registered before infringement was discovered, so she wouldn’t have the right to ask for statutory damages.

I agree there will be problems with interpretation of that document. The thing with it is that it also lists restrictions as it continues. Those restrictions don’t seem possible if the intention was to put the images into the public domain properly. So I don’t know; a judge might find that the intention was to give a broad license to them.

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