$1 Billion Lawsuit Against Getty Images Raises Questions about Public Domain Dedication
Posted by Rebecca Blake on September 29, 2016
Photographer Carol Highsmith was outraged when she received a $120 invoice from Licensing Compliance Services on behalf of Almay Limited, a photo stock agency. The invoice was accompanied with a threat letter contending that she was using one of their licensed images on her website. Why the outrage? Highsmith had taken the photograph Almay was claiming to license. Not only that, Highsmith had donated that photo to the Library of Congress for public use, rights-free. A little bit of digging revealed that Almay Limited and photo stock giant Getty Images were selling Highsmith’s public domain images, and were aggressively pursuing anyone found to be using those images via the content tracking service PicScout (a Getty subsidiary).
Highsmith is a well-regarded photographer who documents the cities, countryside, and cultures of the United States. Her work has have been widely acclaimed and published. Inspired by iconic American photographers such as Dorothea Lange and Frances Benjamin Johnson, Highsmith began donating her photographs to the Library of Congress in 1988. The Library established a one-person archive of her work, to which Highsmith continues to contribute; the collection is expected to top out at over 100,000 images. An article on PDNPulse states that in making her images public domain, “Highsmith says she never abandoned her copyrights to the images. She says the Library of Congress had agreed to notify users of the images that she is the author, and that users must credit her.” (“Photog Seeks $1 Billion from Getty for Copyright Violations,” David Walker, Sept. 9, PDN Pulse) Her intention was to make the photographs available rights-free “for the use and benefit of the American people, and as a permanent record of our nation’s buildings, landscape, culture, and people.” Discovering that her donated work was monetized by stock image agencies was a surprise.
Hightsmith contacted Licensing Compliance Services, who quickly dropped the invoice. But Highsmith wasn’t satisfied. Searches pulled up 18,755 of her donated images on Getty Images, and about 500 on Alamay. Both Getty and Alamay were inconsistent in how the photo was credited. Alamay made no reference to Highsmith, but labeled her photos “© Everett Collection Inc / Alamy Stock Photo.” Getty labeled some images “By: Buyenlarge”, and others “Credit: Buyenlarge/Contributor”, followed by “Photo by Carol Highsmith/Buyenlarge/Getty Images.” (Buyenlarge is the profile of a contributor on the Getty website. It’s also the name of a print-on-demand poster printer specializing in public domain and licensed historic ephemera; some of those images also appear on Getty under Buyenlarge's credit line.) Highsmith also discovered that Getty and Alamay continued to seek out and invoice users of Highsmith’s images, even after they were made aware that users may have sourced the images from the Library’s Highsmith collection.
The sheer volume of the images posted to Getty Images and Alamay led Highsmith and her legal team to seek damages of $1 billion from Getty, Alamay, Licensing Compliance Services, and PicScout. Highsmith is contending that when Getty and Alamay removed or altered the credit line from the photos – the Highsmith/Library of Congress credit she had stipulated upon donating her photos – the defendants violated DMCA provisions of US copyright law which proscribe the altering or elimination of copyright management information (CMI) with the intent to enable or conceal copyright infringement. The lawsuit also contends that the defendants are falsely presenting themselves as the copyright holders (or their agents), and threatened lawsuits they couldn’t pursue against people who lawfully used Highsmith's public domain images. (Highsmith is not claiming copyright infringement in her suit.)
While that figure sounds hyperbolic, it’s based on what the legal team thinks they could be awarded. As outlined in her lawsuit, each instance of infringement could be seen as a separate violation of Section 1202 of US Copyright law, and could result in a award of between $2,500 and $25,000. Multiply that by 18,755 infringements, and the total comes to between $46,887,500 and $468,875,000. Since Getty was already found to have infringed a photographer’s work in the past three years, the Court could additionally treble the damages awarded to Highsmith – hence the $1 billion price tag. (Highsmith also contends that Getty’s licensing of her work damaged her reputation by making her appear to have been hypocritical in first donating her work to the Library, and later deciding to license the work to Getty.)
Carol Highsmith was invoiced for her photo of the Nelson Atkins Art Museum in Kansas City, MO.
Credit: Carol M. Highsmith's America, Library of Congress, Prints and Photographs Division
Getty responded to the lawsuit with a statement claiming that the complaint was based on misconceptions, and filed a motion to dismiss the case. In their motion, they refute that they altered the CMI. Getty's motion also states they could not have altered the CMI with the intent to infringe copyrights, since no copyrights exist to infringe on public domain images. It’s not certain that Highsmith will prevail, should the case go to trial. Stock agencies legally license public domain images, and justify the fees by citing the resources they invest to make the images available for “productive use.” In her article, “Can Anyone Use Public Domain Images?”, Nancy Wolf, legal counsel to DMLA, explains that legally anyone can make use of public domain images, including licensing them. But most images enter the public domain when their copyright expires, if their copyright wasn’t renewed, or if the work didn’t have a valid copyright notice.
But what about images that were dedicated to the public domain? Can the creator make that dedication conditional, as did Highsmith claims she did with her requirement of a credit line? And does the creator retain any copyrights? The IP blog Public Domain Sherpa asked the Copyright Office whether an author could abandon his or her copyright to a work. The Office responded that there is no specific provision in copyright law for disclaiming copyrights, and that while an author can record their intention with the Office, the acceptance of a statement of abandonment of copyrights “…should not be construed as approval of the legal sufficiency of its content or its effect on the status or ownership of any copyright.” In her agreement with the Library, Highsmith stated that she dedicated to the public “all rights, including copyrights throughout the world, that I possess in this collection.” However, the agreement also states that the Library will request that those reproducing the work include the credit line, “Carol M. Highsmith's America, Library of Congress.”
There’s a good chance Getty and the other defendants will settle out of court with Highsmith. Even if they stand a good chance of winning the suit, the negative pulicity generated by the lawsuit may make a court battle not worth the effort. Getty and Alamay have removed all of the Highsmith images from their websites. But what about those who used Highsmith’s images legally from the Library of Congress website, but were invoiced by Alamay or Getty (and paid the bill in some confusion)? Jonathan Bailey on Plagiarism Today wonders if a class action lawsuit brought by those erroneously billed by the stock agencies will be brought.
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