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Judge Dismisses Photographer’s $1 Billion Case Against Getty Images

Posted by Rebecca Blake on November 25, 2016

Earlier, we reported on the lawsuit brought by photographer Carol Highsmith against Getty Images and other parties when she discovered they were invoicing users of her photographs, which she had put into the public domain. Getty Images and another stock agency, Alamy, were licensing photographs taken by Highsmith, which she had put into the public domain in an agreement with US Library of Congress. Highsmith became aware that Getty and Alamay were licensing her photographs when she received an invoice from License Compliance Services on behalf of Alamy, accompanied by a letter claiming she was using the images without their permission.

Highsmith sued Getty and Alamy for $1 billion, stating that since Getty is a repeat offender in copyright violation, statutory damages should be trebled. The defendant’s legal counsel pointed out, however, that the plaintiffs were conflating copyrights with rights management. Since Highsmith had placed her photographs in the public domain, both Getty and Alamy are legally permitted to license the images, and Highsmith has no copyrights to assert on those images. (Public domain works may be commercialized, as in the Dover Publications Design Library collections of public domain clip art and images.)

Highsmith did not sue for copyright infringement, but rather for violation of provisions the Digital Millennium Copyright Act.  According to Lexology, Highsmith’s lawsuit made three major allegations — that Getty, Alamy, and the co-defendants:
1)  violated a provision of the Digital Millennium Copyright Act which forbids the alteration or removal of copyright management information (17 U.S.C. § 1202) Highsmith’s agreement with the Library of Congress stated that her credit line must be included with any use of her images. Getty and Alamy altered or removed Highsmith’s credit line, and added their own watermarks and credit lines);
2)  engaged in false advertising under the Lanham Act by implying that they were working on concert with Highsmith;
3)  similarly, violated New York General Business Law § 349, which forbids businesses from engaging in “deceptive acts or practices.” 

On October 17, the judge presiding in the case, US District Judge Jed S. Rakoff, indicated that he was considering dismissing a number of Highsmith’s claims. According to Law360, the October 17 hearing largely focused on the claims relative to the New York General Business Law, indicating that the judge had already come to a decision on the other claims. In fact, on October 28, the judge dismissed all of Highsmith’s claims except those related to the New York General Business Law. 

That left Highsmith’s lawsuit severely weakened. On November 16, the parties settled over the remaining New York State claims. (The terms of that settlement have not been disclosed.) The judge dismissed the case with prejudice, meaning that Highsmith is forbidden from filing another lawsuit on these grounds. 

Below: Highsmith’s public domain image, which Alamay invoiced her for.
Credit: Carol M. Highsmith's America, Library of Congress, Prints and Photographs Division 

Carol Highsmith Nelson Atkins Art Museum in Kansas City, MO

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