Getty Images Sued Yet Again For Trying To License Public Domain Images
from the this-keeps-happening dept
Back in 2016, we wrote about two separate lawsuits involving claims that Getty Images was selling “licenses” to images it had no rights to sell licenses to. The first one was brought by photographer Carol Highsmith, who sued Getty after Getty had sent a demand letter to her over her own images, which she had donated to the Library of Congress to be put into the public domain. That lawsuit mostly flopped when Getty pointed out (correctly) that Highsmith had no standing, seeing as she had given up the copyright in the photos. The second lawsuit was even more bizarre, involving questions about Getty’s rights to various collections it licensed, and whether it had changed the metadata on photos from photo agency Zuma Press. At the time, we noted that little in that lawsuit seemed to make sense, but it still went on for over two years before Getty prevailed, and basically said the only mistakes were done by Zuma.
Well, now we’ve got another lawsuit against Getty over allegedly licensing public domain images. This one was brought by CixxFive Concepts, and… also seems to be a stretch. How much of a stretch? Well, it starts out by alleging RICO violations, and as Ken “Popehat” White always likes to remind everyone: IT’S NOT RICO, DAMMIT. This lawsuit is also not RICO and it’s not likely to get very far.
This is a lawsuit brought by CixxFive, on behalf of itself and others similarly situated, alleging RICO, Washington Consumer Protection Act, and other claims against Defendants for fraudulently claiming ownership of copyrights in public domain images (which no one owns) and selling fictitious copyright licenses for public domain images (which no one can legally sell), including operating an enterprise of third-party contributors to perpetrate this egregious scheme.
Here’s the thing, though: you can still sell public domain images. You can do whatever you want with them. Of course, you can’t sue over infringement of them, but you can most certainly still sell them. Why do you think book publishers still make a ton of money selling the Bible, the works of Shakespeare, Dickens and others.
In the lawsuit, CixxFive correctly notes that Getty has NASA images in its database, and those are very clearly in the public domain.
Among the images that Getty and/or Getty US licenses are hundreds of thousands to millions of photographs that are in the public domain, including NASA images, White House press images, historical paintings and documents, and photographs that have been donated to the public domain by the authors.
For example, Getty and/or Getty US offers to let the user ?Purchase a license? to a NASA photo of Saturn for $499.00 with ?standard editorial rights? ?or just $475.00 with an UltraPack,? which is a five (5) pack of assets for $2,250.00.
While this may be sleazy, it is hardly against the law.
These images are in the public domain. No one is required to pay Getty and/or Getty US a penny to copy and use them. And Getty has no right to sell copyright licenses for them, as it has done and is doing.
The first sentence is true, the second, not so much. Well, it can’t sell “copyright licenses,” as that is a misrepresentation over the rights that Getty Images has — but if it wants to try to get people to pay for stuff that is otherwise available for free, that’s Getty’s prerogative.
The part of the lawsuit that I don’t think will work, but is at least somewhat interesting, is the argument that this is somehow an unfair or deceptive practice. That’s moderately more compelling than the RICO claim.
One aspect of the deceptive nature of Getty?s and/or Getty US?s licensing scheme is that Getty and/or Getty US claims copyright on all of the content on its website. For example, the bottom of each page of its website states: ?All contents ? copyright 1999-2019 Getty Images. All rights reserved.?
Also, specific public domain images are overlaid on Getty and/or Getty US?s website with the ? symbol followed by an entity or contributor name, indicating that the image is protected by copyright. The same ? symbol and information is also provided next to the public domain image.
Getty?s and/or Getty US?s website terms agreement also states as follows: ?Unless otherwise indicated, all of the content featured or displayed on the Site, including, but not limited to, text, graphics, data, photographic images, moving images, sound, illustrations, software, and the selection and arrangement thereof (?Getty Images Content?), is owned by Getty Images, its licensors, or its third-party image partners.?4
Getty?s and/or Getty US?s website terms agreement further states as follows: ?All elements of the Site, including the Getty Images Content, are protected by copyright, trade dress, moral rights, trademark and other laws relating to the protection of intellectual property.?5
Getty?s and/or Getty US?s Content License Agreement also states, under the heading ?Intellectual Property Rights,? as follows: ?Who owns the content? All of the licensed content is owned by either Getty Images or its content suppliers.?6 (emphasis in original)
That part is at least a bit more compelling, but I’m not sure why CixxFive has standing to sue over that. It seems more like something the FTC or state Attorneys General could go after instead. CixxFive argues that it has standing to sue because it licensed some of these public domain images. But.. that seems to be on CixxFive. If it didn’t do the research to discover that those pictures were available totally free elsewhere, it’s not clear how that’s Getty’s fault.
The lawsuit also points to Getty’s infamous copyright trolling practices via its subsidiary License Compliance Services (LCS), but never actually shows that LCS has threatened anyone over the use of public domain material… other than raising the issue of Carol Highsmith, whose lawsuit we mentioned above, and which got thrown out of court.
I’m certainly sensitive to the slimy practices of Getty Images, and claiming that public domain images are available for license (at very high fees) is very slimy. But it’s not at all clear that it’s against the law. And it’s certainly not RICO (dammit).
Filed Under: copyright, licensing, photography, public domain
Companies: getty images
Comments on “Getty Images Sued Yet Again For Trying To License Public Domain Images”
Ken White’s "snark" isn’t really something a former federal prosecutor and active attorney usually does to distinguish himself.
I could say a lot more, but this is not the place.
Re: Re:
Perhaps not, and he’s the first person to acknowledge that his mouth sometimes gets him into trouble.
But that doesn’t mean he’s wrong when he criticizes people’s tendency to imagine RICO violations where none exist. Do you have any substantive criticism of White in that context? Because that’s the context in which this article cites him.
Re: Jhon boys jelly
And yet he’s famous and you’re a scrub. Ands let’s be honest you ain’t gonna say shit, but innuendo and vague impotent threats.
Re: Re:
Hi, John Herrick Smith.
Still grieving over Popehat’s coverage of Prenda Law, I see.
Re: Re:
And yet Ken’s writing does distinguish him, and many people enjoy reading it. You’re welcome to say more, but you already look like a complete blowhard so…
Oh, come the fuck on
Trying to sell a "license" to something involves an implicit representation that you have some right to limit its use. In this case, Getty explicitly made such a representation.
It’s 1000 percent certain that the only reason that anybody who pays Getty to use these images is that they think they can’t legally use them without Getty’s permission, and it’s also 1000 percent certain that Getty is intentionally trying to create that impression.
It’s fucking idiotic to expect somebody to do "research" to validate a direct claim from a supposedly credible institution that it controls the rights to something it’s selling. That’s an insane amount of burden shifting. Saying that "that seems to be on CixxFive. If it didn’t do the research…" is exactly as compelling as saying that if sell you a poisoned ice cream cone, and yhou eat it based on my claim that it’s yummy, it’s on you that you didn’t do the research to notice that it was full of arsenic.
Now, IANAL, but I believe that when you intentionally misrepresent facts to induce somebody to pay you, that’s called fraud. I don’t know what it’s called when you do it negligently, but it’s definitely the case that your negligence has caused somebody harm, whatever you call it.
Re: Oh, come the fuck on
Didn’t someone come up with a search ability to find like images on the internet? They did, didn’t they. How hard is it to implement a search for an image Getty is trying to ‘sell’ you and then find that same image on, well let’s say NASA’s site, then use the image from NASA’s site and not Getty’s? I suspect Getty might object, but then what could they do? They wouldn’t be able to claim copyright.
I think it is called caveat emptor, or let the buyer beware. Knowing something about Getty Images, and then checking for the source of the image, or if it is really old or from space questioning the copyright seems like an appropriate amount of due diligence before spend hundreds of dollars on a picture.
Re: Re: Oh, come the fuck on
There are nifty handheld XRF guns you can use to detect arsenic in your ice cream, too. Seems like an appropriate amount of due diligence before you put something in your mouth.
Re: Re: Re: Oh, come the fuck on
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Re: Re: Oh, come the fuck on
How hard is it to implement a search for an image Getty is trying to ‘sell’ you and then find that same image on, well let’s say NASA’s site, then use the image from NASA’s site and not Getty’s?
It depends. In the specific case of NASA, a knowledgeable person would realize that NASA (as a government agency) cannot copyright anything, and therefore conclude that they can use the image from NASA’s site.
However, if the site that the image search leads you to does not belong to the government, then you’re back at square one. The mere existence of the image on another site means nothing. It could be that the image is public domain…or it could mean that said site licensed it from Getty… or it could mean that said site licensed it to Getty… or it could mean that said site pirated the image themselves… unless the site says which one of these options it is (and assuming that said site wasn’t also fooled into thinking they had to license it from Getty), the buyer now has no more information then they did at the start.
Re: Re: Re: Oh, come the fuck on
Agreed, finding the image somewhere else doesnt mean anything.
I find it more annoying when you can’t find a separate source for the image. Especially when I know something is public domain but I cant find the open source of it and all that can be found is the getty or similar site.
What they are doing should be illegal but its not like politicians care.
Re: Re: Oh, come the fuck on
That is not a great argument. Sure NASA might be the creator of the images therefore a public funded creation that should by default be public domain but things get murkier with images not from public institutions. Going to a site usually gives boilerplate copyright notice on some corner but it doesn’t necessarily gives reliable info on who really owns images and who is just licencing them. So it is a heavy burden to shift to the consumer since there is no good centralized database on who holds copyright to what. Its time we at least agree tgat copyright gives insanely powerful protections and rights for free and a huge burden to society. It should be balanced to at least require honesty. Those misrepresentations of ownership by Getty are fraudulent on their face.
Re: Re: Oh, come the fuck on
"I think it is called caveat emptor…"
No, it’s not. It’s called fraud.
Re: Re: Oh, come the fuck on
How hard is it to detect a Nigerian scam? The ease at which fraud can be determined should have no correlation to legality.
Re: Oh, come the fuck on
Agreed Getty is acting in Bad Faith by claiming copyright on things that they don’t actually own.
Re: Oh, come the fuck on
I’m not sure that some large organizations don’t have agreements with Getty that allow them to use pretty much any image Getty has under that agreement. In those cases it woudl be easier for the organization to simply search Getty than to seperatly searc a number of public domain archives.
Re: Oh, come the fuck on
"Now, IANAL, but I believe that when you intentionally misrepresent facts to induce somebody to pay you, that’s called fraud. I don’t know what it’s called when you do it negligently, but it’s definitely the case that your negligence has caused somebody harm, whatever you call it."
Unfortunately where copyright is concerned this is normally called a "business model". Nowhere as illustrated as in the newly implemented shitshow known as the copyright directive, but in the US better known under the DMCA where shifting the burden of proof to the accused was cemented in law.
There’s a reason it takes a long time before the hatchet falls on copyright trolls. It takes something special to prove bad faith, where in a case not related to copyright the offender would be before a judge before the ink was even dry on the first batch of mass-mailed extortion notes.
Re: Oh, come the fuck on
Trying to sell a "license" to something involves an implicit representation that you have some right to limit its use. In this case, Getty explicitly made such a representation.
You’re right about it being fraud but the lawsuit doesn’t claim that. It totally should, though.
Re: Oh, come the fuck on
I think Getty is providing something of use to companies – essentially perceived liability insurance as a legal shield. Their job is "yes we have the right to it and you can use it". In this case they leave out "anyone can use it" but companies tend to be skittish about potential liability. Essentially their concern is if they have their people search for their own images they might mess up and get a non-commercial public image or worse and it is cheaper and cleaner to pay anywhere between 15 cents to $20 than the lawsuit risk.
As I am not a lawyer I am uncertain if there is an offence to sell "licenses" to public domain content. Where they error here is transparency – if they had included say a "public domain" sticker/tag and a note that what you are paying fo in this case is assurance and convenience, and that the license durations are effectively indefinite and infinite copies and Getty never tries to sue anyone it would be unassailable and even providing a good educational role.
"While this may be sleazy, it is hardly against the law."
Personally, I wouldn’t say selling the access to those images is sleazy – but those prices sure as feth are. Christ, $500 for a single image? Charging for the convenience of making them available in one easy group is fine but storage costs aren’t that high.
Re: Re:
This is cheap. Consider how much they charge for the pictures they actually own!
Using Getty instead of grabbing an image on the web means you aren’t likely to get sued. And if you do get sued, you can show that you made a good faith attempt to obtain a license.
Of course, you can’t show your Getty license to an upload filter, so it still could get blocked.
Four Causes of Action
See case law:
https://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1341&context=fac_artchop
Payment demands for spurious copyrights,
Four causes of action
…
Breach of Warranty…
Unjust enrichment/Restitution…
Fraud
False Advertising
Re: Four Causes of Action
It would only be fraud if Getty claimed that you can’t use those images without their license.
Re: Re: Four Causes of Action
One aspect of the deceptive nature of Getty’s and/or Getty US’s licensing scheme is that Getty and/or Getty US claims copyright on all of the content on its website. For example, the bottom of each page of its website states: “All contents © copyright 1999-2019 Getty Images. All rights reserved.”
Also, specific public domain images are overlaid on Getty and/or Getty US’s website with the © symbol followed by an entity or contributor name, indicating that the image is protected by copyright. The same © symbol and information is also provided next to the public domain image.
Pretty sure slapping a copyright symbol on the pics, and claiming that they own the rights to everything on their site would cover that.
Re: Four Causes of Action
Try this link
https://digitalcommons.law.uga.edu/fac_artchop/344/
Re: Re: Four Causes of Action
Sorry – the other one was just an abstract
https://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?referer=http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&ved=2ahUKEwjPg9OJgLDhAhWxmOAKHQcBBJAQFjABegQIAxAB&url=http%3A%2F%2Fdigitalcommons.law.uga.edu%2Fcgi%2Fviewcontent.cgi%3Farticle%3D1341%26context%3Dfac_artchop&usg=AOvVaw3ng72glMHjjSLoBWIoAF2r&httpsredir=1&article=1341&context=fac_artchop
"While this may be sleazy, it is hardly against the law"
I was unaware that fraud was not illegal, how is this not fraud?
ianal, but this certainly smells of fraud, looks like fraud, sounds like fraud … I guess it is only illegal if you are a little poor person because rich folk do as they please.
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That’s not how burden of proof works.
How is it fraud? Not in a colloquial sense but in a legal sense, either based on statutes or common-law legal precedents.
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How is presenting false information(‘We own the rights to this’) such that someone is convinced that if they want to use something legally they must pay you not fraud?
It’s one thing to simply sell public domain images, anyone can do that, it’s quite another to make claims that you own images in the public domain and then sell them.
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FFS.
What did I just say?
Re: Re: Re:2 Re:
The wall of text and legalese is enough to make my eyes cross, but this would seem to do the trick.
18 U.S. Code § 1341
Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure…
‘We own the rights to this, give us money if you want to use it legally’ would seem to fit that nicely.
Re: Re: Re:3 Re:
Thanks, that’s more what I was after. I think this raises some interesting legal questions but I don’t think it’s a slam-dunk by any means.
Getty putting boilerplate on all its pages stating that all images are copyrighted when that’s not the case is certainly dodgy, but I don’t know if it rises to the level of fraud. When a statement is automatically placed on every page on a website, I think the website publisher probably has a good argument that if it’s inaccurate on a few pages on the site that’s the result of someone making a mistake, not deliberate fraud. (It’s April and I still haven’t remembered to update the copyright dates on some of the websites I control to 2019 instead of 2018.)
And as the article notes:
I think that’s an important distinction: if Getty were trying to shake people down and demanding license fees for images (which it did in at least one case, but not this particular case), then that could be fraud. I think the fraud case for merely putting the images up on the Getty website and accepting money for licensing them is a lot less clear-cut — that’s sleazy, but I don’t think it’s fraud, and I don’t think having a boilerplate copyright notice next to it is strong enough to make it fraud.
But I don’t know. Maybe the court won’t agree with me.
(There’s also the issue that a PD work can be copyrighted if it’s modified in some substantial way, but I haven’t seen any claims that that’s what Getty did here, so I’ll assume it doesn’t apply in this case.)
Re: Re: Re:4 Re:
"Getty putting boilerplate on all its pages stating that all images are copyrighted when that’s not the case is certainly dodgy, but I don’t know if it rises to the level of fraud. When a statement is automatically placed on every page on a website, I think the website publisher probably has a good argument that if it’s inaccurate on a few pages on the site that’s the result of someone making a mistake, not deliberate fraud."
Yeah maybe that’s a passable argument when image rights are not your business. But, when that IS your business, "It was too hard to be careful" is a BS and unacceptable excuse.
Re: Re: Re:
How exactly is fraud defined in the U.S. law, could you explain to a Non-American, please? As far as I see, they claim they own something that they don’t, it’s basically selling the Brooklyn bridge all over again, (ab)using their position of credible reputation.
In some jurisdictions (like in the Continental droit d’auteur system), it would be an infringement of the original author’s moral rights which don’t expire even if the authors gives up all other rights, so it might be possible to bring this up in court. Whether there’d be any effective punishment is another matter.
Re: Re: Re: Re:
"How exactly is fraud defined in the U.S. law"
Seemingly, all laws including fraud are only applicable to the not rich and influential. Fraud and corruption are what makes the world go around.
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That One Guy included a pretty good excerpt a few posts up.
It’s not illegal to sell something that’s in the public domain; note the examples in the article about how anybody who wants to print and sell a public-domain book is free to do so.
While it appears that Getty’s site included boilerplate suggesting it owned the copyright on every image in its library, I’m not sure that rises to the level of fraud. It doesn’t appear to have attempted to shake down people using the PD images (in this instance). I think the fraud case is weak, but I guess we’ll see what the court says.
We don’t really have much conception of moral rights in US law.
Re: Re: Re:
There is no burden of proof to discuss an issue.
Re: Re:
"I was unaware that fraud was not illegal, how is this not fraud?
ianal, but this certainly smells of fraud, looks like fraud, sounds like fraud…"
And where copyright is concerned, whether it’s fraud or not will be for the highest paid lawyers to decide. And even then you may end up in a legal morass where whoever can hoodwink the judge the hardest walks away with the cash.
This is what happens when you put a price tag on information and ideas which can and will end up being copied all over the world.
That lawsuit mostly flopped when Getty pointed out (correctly) that Highsmith had no standing, seeing as she had given up the copyright in the photos.
This is the dumbest thing I’ve ever read. If Getty is right, then copyright is wrong.
Mike, please explain why you feel this decision is justified.
If I lend you my car, this doesn’t remove me as the owner.
Carol is still the rights owner of the images and should have the option of taking legal action against someone selling images she allows others to use.
If lent you my car and you tried to sell it, well, we have a problem.
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No, but if you sign the title over to him it does.
Which is as far as I’m willing to take the copyright = cars analogy, because it is a bad analogy. Copyrights aren’t cars; they are different in fundamental ways, as are the laws that cover them.
Re: Re:
She put her images in the Public Domain which meant she released her ownership of them and thus had no standing to sue Getty over what they did with the images.
If something is in the Public Domain then anyone can do whatever they want with it, be that use it for free or sell it to someone else.
A car analogy would be you giving your car away for free and then getting upset that someone took it and turned it into a taxi to make money with it.
What she should have done if she only wanted people to use the images was to use a Creative Commons license where she would have retained the copyright and depending on the license she used would have had standing to sue Getty.
The only part she would have had standing over is the bit where Getty sued her for not licensing images that were in the Public Domain, as whilst Getty can sell these images they don’t have exclusive rights and shouldn’t be able to sue over images that are in the Public Domain, similarly a DMCA takedown shouldn’t be issued for them. (Though this is going to be a mess with Article 13 especially if Getty continue to insist they own stuff they don’t).
Also there doesn’t seem to be any mention of what happened to this part of the lawsuit? I’d guess if it was thrown out they withdrew the claim against her and the court likely decided she didn’t have standing to persue them for the claims they made against other people who used the images.
Re: Re:
"This is the dumbest thing I’ve ever read. If Getty is right, then copyright is wrong."
Copyright may be wrong in this case, yes, because copyright is almost always wrong.
In this case Carol signed over her rights to the public domain. According to copyright law although copyrighting images in the public domain may be wrong there’s no copyright holder who has a legal standing to complain. This is what makes it so damn easy for avaricious copyright trolls to steal from the public domain to begin with.
And this is why creative commons was created – a copyright which specifically allows everyone to own and use the covered content while relying on copyright law to allow any stakeholder (anyone who wants to) to build a case against anyone trying to restrict the license.
It’s a shit workaround to reestablish what is natural, but there you go. Just saying "I want EVERYONE to have this" is an open invitation for copyright trolls to rob and plunder.
As things are now, even though this specific lawsuit is dumb and should not move forward, other more legitimate cases are also stuck. Public domain is vulnerable because it cannot be legally defended.
At a federal level, this would be in the FTC’s ballpark. It may also be wire fraud if the people licensing the material aren’t in the same state as Getty.
Otherwise, the only place these guys have standing is in small claims court where they can claim Getty misrepresented themselves in the contract. They can essentially file a claim for a refund.
So if Carol Highsmith had licensed her images under CC-By or some such license, she could have nailed Getty to the wall for their sleazy, greedy, disgusting, reprehensible behavior?
Also, here’s Getty being their sleazy, greedy, disgusting, reprehensible selves:
https://www.gettyimages.com/detail/news-photo/moses-breaking-the-tables-of-the-law-engraving-by-the-news-photo/52018017
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But it’s not the engraving that they’re claiming copyright over, it’s the photo of the engraving! Pay up!
At least, I’m pretty sure that’s the BS argument they’d give.
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Well, it worked for bird songs, white noise and silence…
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"So if Carol Highsmith had licensed her images under CC-By or some such license, she could have nailed Getty to the wall for their sleazy, greedy, disgusting, reprehensible behavior?"
Yep. If you want everyone to have your work just giving it away to everyone is just an invitation to unscrupulous arseholes to steal the rights, restrict the license post-facto, and sue the ever-living daylights out of anyone naive enough to believe what was on the label.
Welcome to copyright, where any information not owned and controlled is a criminal offense.
Re: Re:
"So if Carol Highsmith had licensed her images under CC-By or some such license, she could have nailed Getty to the wall for their sleazy, greedy, disgusting, reprehensible behavior?"
Yep. Basically.
There were a few reasons Creative Commons was created using copyright law as a basis – to render Public Domain a legal reality was a large part of it.
An idea
In the spirit of how there is no problem so great that it cannot be solved by adding more government regulation (with a side order of taxes), may I propose an idea . . .
Have a large Statutory Fine for claiming copyright over a public domain work.
Doing so is a clear harm to the public interest.
Case Law - Hoehling v. Universal City Studios
Hoehling v. Universal City Studios
https://www.law.cornell.edu/background/amistad/6182d972.htm
States are pre-empted from removing material from the public domain.
"To forbid copying" in this case, "would interfere with the federal policy . . . of allowing free access to copy whatever the federal patent and copyright laws leave in the public domain."
Case Law - Compco v. Day-Brite
COMPCO CORP., Petitioner, v. DAY-BRITE LIGHTING, INC.
https://www.law.cornell.edu/supremecourt/text/376/234
when an article is unprotected by a patent or a copyright, state law may not forbid others to copy that article. To forbid copying would interfere with the federal policy…
of allowing free access to copy whatever the federal patent and copyright laws leave in the public domain.
.
Case Law - Sears v. Stiffel
SEARS, ROEBUCK & CO., Petitioner, v. STIFFEL COMPANY.
https://www.law.cornell.edu/supremecourt/text/376/225
Just as a State cannot encroach upon the federal patent laws directly, it cannot, under some other law, such as that forbidding unfair competition, give protection of a kind that clashes with the objectives of the federal patent laws.
.
Re: Case Law - Sears v. Stiffel
And what about Universal vs Nintendo, when Universial tried to claim ownership over King Kong, and used that to go after Nintendo’s Donkey Kong? At one point, it came out that Universal had won a case prior that upheld their stance that King Kong was public domain. Seems to me, it would be relevant to the "trying to enact ownership over public domain IP" area.
"You can do whatever you want with them. Of course, you can’t sue over infringement of them,"
But ./.. that’s the whole problem, that Getty seems to be implying that they can.
Why hasn’t anyone, in these cases, brought up Universal v. Nintendo? Seems like it would be relevant with regards to trying to assert rights/ownership over public domain IP.