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Photographer Suing Getty Images for $1B

408 points by iamben 10y ago

pavel_lishin 10y ago
While $1B seems excessive, and more of a number to make a point, it does seem outrageously egregious to send her a bill for her own photo on her own website that she donated for public use. It would be like coming home to find a naked vagrant sitting on your couch, demanding that you pay him rent.
- _yosefk 10y ago
  Your analogy is pretty precise up to the "naked" part. I've heard pretty bad things about Getty Images from their customers (much more expensive than competitors, much worse customer service.) Naked I've never heard...
  - pavel_lishin 10y ago
    I'm going to add a post-hoc rationalization that has something to do with it being a ballsy move, though I wasn't thinking of that at the time...
    - logfromblammo 10y ago
      To distinguish from a nudist's casual disregard for garments and a hermit's inability to acquire substantial coverings, perhaps it would be better if Getty were not entirely naked, but instead had its underpants dropped to its ankles. That says, "I own clothes, and usually wear them in a socially acceptable way, but I made an exception just for you and your formerly unstinky couch cushions."
- steego 10y ago
  Copyright thugs have been punishing people with outrageous fines and settlements for years. $1B doesn't seem excessive. Live by the sword. Die by the sword.
  - gozur88 10y ago
    That's my take as well. It's bad enough companies make legitimate but lazy mistakes like filing DMCA strikes against works with the same name as something they own. But it seems like the absolute minimum you ought to do is make sure beyond a doubt you own what you claim to own.
- dublinben 10y ago
  It's likely that Getty have also fraudulently charged many other customers licenses for these photos. It's not inconceivable that each of them could individually sue Getty for their own damages. This looks like it could become a very expensive case of sloppy (or deliberately negligent) copyright overreach.
  - morninj 10y ago
    Nit: by definition, negligence can't be deliberate. Edit: "negligence" means you should have known of the risk. "Recklessness" means you knew of the risk but acted anyway.
    - newman314 10y ago
      "Extremely careless" Sorry, could not resist.
    - simpsond 10y ago
      https://en.m.wikipedia.org/wiki/Gross_negligence https://en.m.wikipedia.org/wiki/Gross_negligence
      - morninj 10y ago
        "Gross negligence" means you really really should have known of the risk. But it's still a contradiction to say that someone was deliberately grossly negligent.
        finnh 10y ago
        Not really, I don't think. That's basically the idea behind deniability - you kinda sort know about something, but you kinda sort make sure you never actually know about it. Gross negligence is often more along the lines of "we are 99.999% sure you are lying, but we can't prove it".
        morninj 10y ago
- overcast 10y ago
  First rule of any price negotiation, always start WAY too high :) On a serious note, Getty has been doing this underhanded shit for ages, and the amount they pay photographers is even worse. From what I've read, they don't even report to photographers, who downloaded their works. So there really is no accountability, on how many you REALLY sold. It's shady nonsense.
- mikeash 10y ago
  It's only about twice the statutory damages. And it looks like the article is only using $25,000 per work for that number. For willful infringement, statutory damages can go up to $150,000, which would be about $2.8 billion for 18,755 photos here. I'd say she's being fairly generous by offering to settle for a mere $1 billion!
  - thehashrocket 10y ago
    Maybe she's taking a play out of their own book? "We could have sued you for this much, but instead we're offering you a chance to settle for only this amount."
    - Fuxy 10y ago
      Ha ha... funny. I would have sued them for the full amount the law permitted for each image if the company goes under as a result that would act as example/discouragement for any other company that would think about doing that in the future. People get fined ridiculous amounts all the time as discouragement so why shouldn't companies have the same happen to them their technically a person in the US no?
      - rbanffy 10y ago
        If the company goes under because it can't make the full payment, I'd accept a transfer of the remaining copyrights and promptly place everything in the public domain.
  - anarres 10y ago
    It's because she's asking under DMCA 1202/1203, false copyright information, not for infringement.
- codingdave 10y ago
  Yes, $1B sounds excessive... but that is also a valid legal strategy -- making your complaint cover everything under the sun, for as much damages as possible, expecting their lawyers to fight each point and amount, and hopefully the end result is something you actually find acceptable.
  - protomyth 10y ago
    It might be excessive, but we are talking about 18,755 images, and I bet Getty has won cases over single images in the $55,000 range. Its only fair they pay the same that they won from others.
  - Fuxy 10y ago
    It's not excessive it's too low now $1B per image would be excessive but not unheard of so still fair. Now $18,755B would make for a nice discouraging lawsuit that make any other company think twice about pulling this ever again. I want Getty to go bankrupt as a result of the lawsuit. I'm evil I know but it's what they would have done so I see nothing wrong with that.
- Lagged2Death 10y ago
  While $1B seems excessive, and more of a number to make a point... Broadly speaking, the "content industry" has habitually been dragging individual file-sharers into court and claiming life-altering, bankruptcy-forcing judgements for more trivial violations, in order to terrify the general public into compliance. If the threat of a $1B judgement is enough to threaten Getty with bankruptcy, if it's enough to scare other rights-claimers into making their businesses more businesslike, that's actually very comparable.
- jliptzin 10y ago
  I very much hope that a $1B judgment is enough to put Getty Images out of business based on their terrible practices but sadly I would imagine it would take much more than that.
StavrosK 10y ago
Isn't the problem here that she donated all her photos to the Library of Congress without clarifying what that meant? Apparently, the LoC thought that the photos were placed in the public domain, and the photographer thought she was retaining the copyrights. Also, why the hell is Getty charging for public domain photos? Are they not aware that people can use those without paying Getty?
- rm999 10y ago
  > "Ms. Highsmith has stipulated that her photographs are in the public domain" - Library of Congress (http://www.loc.gov/rr/print/res/482_high.html http://www.loc.gov/rr/print/res/482_high.html) > "Highsmith says she never abandoned her photo copyrights" -article Yikes, that seems like a big misunderstanding. I would guess the LOC has a process to transfer the ownership of photos. If so, she probably signed away her copyrights without realizing it (???) Either way, what Getty is doing is terrible and wrong. I don't see how she can sue for copyright damages if she doesn't have the copyright, but I hope they're punished for it. I'm not a lawyer, so someone please correct me if I'm misunderstanding something here.
  - anarres 10y ago
    I believe you are correct, but I suspect that's why she's not actually asking damages for copyright infringement, but for DMCA false copyright information. Anyone injured by that can sue: https://www.law.cornell.edu/uscode/text/17/1203 https://www.law.cornell.edu/uscode/text/17/1203 It's a really big deal that this obscure section in DMCA (1202/1203) can be used for this, and I believe she has a good case.
- pavel_lishin 10y ago
  > Isn't the problem here that she donated all her photos to the Library of Congress without clarifying what that meant? No, because > why the hell is Getty charging for public domain photos? There is no amount of clarification there that allows Getty to charge for something. Either it's in the public domain, in which case they have no right to charge for use of the photos, or it's not, in which case they have no right to charge for the photos. I'd wager that this is some sort of colossal business fuck-up that's not anyone's fault. Mostly because I can't imagine anyone so baldly stealing money.
donatj 10y ago
So the library of congress says they're public domain. If they're public domain are you not free to sell copies of them? Such as how you can sell copies of famous paintings or copies of Firefox for that matter. If they're not actually public domain shouldn't she be suing the library of congress for misrepresenting the license? Yes, if they're public domain Getty shouldn't be trying to enforce ownership but that seems their only misdeed.
- pavel_lishin 10y ago
  You might be able to sell prints, but you can't sell the rights to display those prints. You certainly can't come into people's homes and demand that they pay you for a copy you got from the Library itself.
  - stevefeinstein 10y ago
    I think you can, if you generate a derivative work. And I would bet that could be something as insignificant as color correction of the image.
    - dpark 10y ago
      Pretty sure that doesn't qualify as a derivative work. Changes must be substantive. Otherwise correcting a typo in a book would give you a copyright for that correction, preventing others (including the original publisher) from making the same correction. Moreover, the photographer here certainly didn't use any "derivative" from Getty. So even if Getty could claim copyright on their "derivative", they cannot justly claim copyright over the original.
Smushman 10y ago
Using some examples from the comments of the article: It's akin to Getty setting up a small tent inside of Central Park, and asking people that walk by to pay an entry fee. But Getty goes 1 step further: They hire strongarm guys to go around the park and tell people (one-on-one) that they skipped out on their 5 dollar entry fee and they can 'settle' with them right now or be taken to court. It's terrible. I can't imagine how to solve that without a total change of copyright laws, other than scare the bejesus out of them. Which seems to be exactly what the photographer is doing.
- jimbokun 10y ago
  "I can't imagine how to solve that without a total change of copyright laws" What? Sounds more like they are in flagrant violation of existing copyright laws, and deserve to get their head handed to them in court.
  - emodendroket 10y ago
    I suppose the point is that the current laws are difficult to enforce and the process is ripe for abuse.
  - Natsu 10y ago
    I think they wanted to avoid the situation rather than punish it after the fact.
  - derefr 10y ago
    Laws have denotative semantics—what they strictly allow, and what they strictly don't. But any given law will also create (or modify) an incentive structure. Copyright has a problem, in that IP rights get more profitable as you get closer and closer to being in violation of the law. The incentive that creates is for everyone to try to violate the spirit, but not the letter of copyright law. A better law would fix the incentives: to make copyright "abuse" a sliding scale, one that starts long before the current point where something becomes a violation of the law, where the more profitably-abusive an act is, the bigger a fine you'll get for doing it. The cost-benefit should always work out in favor of not violating the spirit of copyright law.
deleted 10y ago
[deleted]
ComodoHacker 10y ago
>she found out about Getty Images charging for her photos when she was sent a letter from Getty that demanded she pay for her own photo that was being displayed on her own website Such insolence should be punished hard.
CodeSheikh 10y ago
People working at Getty and blindly sending cease-and-desist letters should be fired at once. These guys are similar to debt collectors and harassment is their virtue. They could have at least spend sometime time researching about her. Maybe Getty would have been $1 Billion richer today. She should be compensated for something at least.
cloudjacker 10y ago
> public domain > but are falsely and fraudulently holding themselves out as the exclusive copyright owner (and suing others) So the federal government should be suing them instead of the photographer? It doesn't seem like the copyright office has its own enforcement agency, so it probably would be up to the photographer to start a proceeding, since nobody else will. This makes her attempt to get copyright damages to be a red herring which could undermine her entire case. Therefore, I realize she has no claims, except the single one where Getty tried to sue her for using her own public domain images.
- jahewson 10y ago
  No, the images are not actually public domain. She owns the copyright and Getty have infringed her copyright thousands of times. She has many big claims.
- anarres 10y ago
  DMCA 1203 doesn't require copyright ownership to sue. (check it) I understand why you assume she needs a copyright, but read the actual complaint and causes of action. Indeed she sues for copyright and DMCA, but asks for damages under DMCA. If copyright fails, it doesn't affect the rest.
6stringmerc 10y ago
My goodness gracious, I hope she wins and helps inform other Copyright-based individual professionals of the avenues that are available when one's work is being exploited in ways that aren't legal (the whole "pay us a penalty" aspect here, not the selling Public Domain stuff which is okay). Good for her. Will stay tuned to see how this plays out.
mortenjorck 10y ago
I’m seeing lots of analogies here, but are they really necessary? A rights company notorious for fiercely defending its own copyrights flagrantly violates those of a photographer, appropriating and then aggressively defending illegitimate copyright over her work. Is this not a straightforward enough situation to explain without the overhead of analogy-making?
tmd83 10y ago
This is beyond shameless but I'm not surprised that this happens. Big players of copyright seems be doing this sort of thing all the time and getting away with it. This comes from the same mindset that allow a original video by the author to be put off youtube by a big studio. I think I read that big recording studios similarly uses lesser known artists songs in records under some weird law (pretending they couldn't find the copyright holder) and basically strongarm them if they come out and complaint. Does anyone know if its true and provide reference? Essentially the legal system worldover is extremely for the power broker. The ones who needs the least protection gets the most and those that need it in most cases cannot even afford the least.
- cookiecaper 10y ago
  Yes. This is becoming ever-more-salient as large portions of the programming that airs on multi-national news organizations comprises original content posted to social media and owned by the user that originally authored it. Just in the last month we have Nice, Dallas, and Turkey, where it felt like all the news orgs were doing was reading tweets and playing back 60-second clips that people were posting online. On the one hand, news orgs probably have a reasonable fair use case there, but on the other, they are profiting off content that the OP owns, and OP is rightly entitled to a portion of that evening's advertising proceeds if their content comprises a substantial part of the programming. If someone snippeted CNN and played it repeatedly on their own channel as fair use, they'd get pursued hard, be unable to fund the legal battle, and be forced to do whatever CNN said lest a long and ruinous legal battle occur with spotty if any representation for the little guy. It'd a big multi-national law firm that bills at $1k/hr v. an innocent little person who probably doesn't know any legal terms at all and would be lucky to have $10k in savings. Meanwhile, CNN and other large companies will openly trounce anyone and everyone they can because they understand that only a tiny fraction will actually be in a position to hurt them for it, and they'll try to leave that tiny fraction alone if they can help it. You'll try to sue them for an injustice and for the $20k they owe you and it'll explode into an 8-year, multi-million legal battle. The little guy still gets completely screwed over. Since big companies know this, they take full advantage and effectively, operate under a different set of laws from the rest of us. The easy way to mitigate this specific problem wrt copyrights is to reform copyright law so that we no longer divert a grossly disproportionate amount of money into content companies and so that they don't file lawsuits that there is no hope of winning, but it doesn't really solve the larger issue, which is that the legal system is only really available and functional for those with the capacity to spend $10 million on lawyers at any given time. Unfortunately, it doesn't seem that we're going to resolve that during the lifetime of anyone currently living.
DiabloD3 10y ago
Honestly, I hope she wins, and then donates a huge chunk of it to some worthy cause just to further piss on Getty. It's okay that Getty lists high quality images that are public domain or restriction free as part of their search engine, but it is beyond ethically wrong to charge money for them.
- chrismcb 10y ago
  Why is it unethical to charge for public domain images? I'm not saying this is what happened here, but there are many reasons to charge for public domain images, and for someone to pay. One big reason is for proof they are public domain. If my business was using images, I would want to make sure I have the right to republish those images. Even if that means I have to pay for public domain images. Getty is providing a service and they are charging for it. Sure, perhaps you can go elsewhere to get those same images for free... Then you should do so if you don't want to pay the fee. But there is nothing unethical about charging for public domain images... Now sueing people because they didn't not pay you for those images is wrong. The federal good government needs to get involved in this as well.
wavefunction 10y ago
I will just point out that the two statements that "the photos are in the public domain" and "she never abandoned her photo copyrights" are not in opposition. Orphaned works (abandoned copyright) can be subject to re-copyrighting by another party from what my laymen's understanding of copyright law is. Instead she specifically stipulated that these photos are in the public domain and so Getty is obviously operating under bad-faith principles.
- visarga 10y ago
  The problem is not that they charged money for the photos. They can do that for public domain works. The problem is that they sent C&D letters to other people who used the same work, even though they were not entitled to. But then, unfortunately, this could be filed as a simple DMCA notification error and would not entitle the author to 150,000$ in damages per work. She will receive only an apology. And this is how Getty gets to strongarm the less rich artists and only have to say "sorry" when they can't win.
- chrismcb 10y ago
  Yes, those two statements are in direct opposition. A work in public domain has no copyright. If she kept the copyright, the works are not in public domain.
  - wavefunction 10y ago
    Abandoning copyright is different than assigning the works to the public domain from what I know. One is an explicit act (moving works into the public domain) and the other is simply a sin of omission.
awqrre 10y ago
Maybe someone should analyze all other images hosted by Getty to find other infringements...
triangleman 10y ago
A google search returned this PDF as the actual court filing: http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=2249&context=historical http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?articl...
- amalag 10y ago
  This is interesting in there: 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.
Smushman 10y ago
The fact that their internal processes show total indifference as to whether a photo is sourced from Public Domain or any other source speaks volumes about their attitudes re: the art they sell; and from the top of the company down. It shows their #1 priority was collecting as many pieces of work as they could, and their #2 effort was reinforcing their payment system (a la threats if you don't pay). No where in that equation was the artist, the art itself, or any related interests. They only cared about being the middleman and acted like it.
bencollier49 10y ago
A lot of people here seem to be taking issue with the fact that the photographer donated her works to the Library of Congress. As it happens, she's apparently bringing the case under the DMCA's provision for false attribution of copyright, and has addressed the issue of donation in the brief. Good luck to her.
mijoharas 10y ago
Looking at the actual legal filing[0] it seems that the relevant section is 35: 35. Since approximately 1988, Ms. Highsmith has made her photographs available to the public for free through the U.S. Library of Congress, thereby exercising her exclusive rights under 17 U.S.C. § 106 to distribute copies of her copyrighted work to the public by sale or other transfer of ownership, and to authorize others to do so Now looking at what 17 U.S.C. § 106 says[1], it appears that they are claiming that she did not transfer her copyright over to the Library of Congress to put the works in the public domain, but merely provided the library of congress with the right to distribute copies of the work to the public. (Not a lawyer). [0] http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=2249&context=historical http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?articl... [1] https://www.law.cornell.edu/uscode/text/17/106 https://www.law.cornell.edu/uscode/text/17/106
- jahewson 10y ago
  > did not transfer her copyright over to the Library of Congress to put the works in the public domain This isn't a thing. There's no well-defined mechanism by which that could be done.
Animats 10y ago
Read the court filing. She can win this. She owns the rights to the images. She licensed the Library of Congress to distribute them for free, but did not release them into the public domain. Getty is selling her images. That's a for-profit DMCA violation. The statutory penalty applies, which is from $750 per image to $30,000 per image. She makes a case that the higher end of the scale should apply, because some of her images are quite famous. Two have appeared on US stamps, for example. Getty recently lost a DMCA case for doing something similar. That makes this a second offense and triggers the triple damages provision in the DMCA. So, as a matter of law, she is entitled to at least 18,755 * $750 * 3, or about $42 million. That's a minimum.
- jahewson 10y ago
  The DMCA isn't the most important part here, the (classical) infringement itself is the big factor, because the images are under the photographer's exclusive copyright. Adding the DMCA claim of falsifying copyright information certainly helps her case though. Having said that, if it turns out that the library of congress is responsible for the infringements (because they published the images and labelled them incorrectly as being public domain) then Getty would be off the hook for infringement but the DMCA claim of falsifying the copyright information would still apply (as you can't claim exclusive copyright over a public domain work). I suppose it's possible that an unscrupulous third party falsely licensed the "public domain" images to Getty, which would make Getty responsible for neither the falsification of copyright information, nor the infringement. I guess in that case Getty would still be found to have been infringing, but not deliberately.
  - dragonwriter 10y ago
    > Having said that, if it turns out that the library of congress is responsible for the infringements (because they published the images and labelled them incorrectly as being public domain) then Getty would be off the hook for infringement It seems to me that mislabeling wouldn't make the LoC legally responsible for the infringement, but might make Getty not liable for any infringement that happened entirely before they were made aware of the incorrect labeling. Or maybe not; since willfulness is an enhancement on liability for infringement liability [0], not a prerequisite, the fact that Getty did not know that the images were subject to copyright may not be a defense. > I suppose it's possible that an unscrupulous third party falsely licensed the "public domain" images to Getty, which would make Getty responsible for neither the falsification of copyright information, nor the infringement. AFAICT, that wouldn't necessarily legally relieve Getty of liability, though it would make the other party liable to the copyright owner for willful infringement, fraudulent claims of ownership, and contributory infringement (with regard to Getty's infringement), and also liable to Getty for fraud and potentially other torts. [0] see, e.g., 17 U.S.C. Sec. 504(c)(2)
vvanders 10y ago
Ars has some good coverage of this as well: http://arstechnica.com/tech-policy/2016/07/photographer-sues-getty-images-for-selling-photos-she-donated-to-public/ http://arstechnica.com/tech-policy/2016/07/photographer-sues... > 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.
deleted 10y ago
[deleted]
jwilk 10y ago
If CloudFlare hates you, here's an archived copy: https://archive.is/Bmpg4 https://archive.is/Bmpg4
williamle8300 10y ago
I believe this is why the Creative-Commons license was created. It stipulates how others can use your free-to-use intellectual property.
kilotaras 10y ago
There's a story about Deep Purple getting similar demands for their concert in Russia in 2008. They went to court...and lost. [1] [1] http://bravewords.com/news/deep-purple-ordered-to-pay-royalty-to-themselves-in-russia http://bravewords.com/news/deep-purple-ordered-to-pay-royalt...

408 points by iamben 10y ago

While $1B seems excessive, and more of a number to make a point, it does seem outrageously egregious to send her a bill for her own photo on her own website that she donated for public use. It would be like coming home to find a naked vagrant sitting on your couch, demanding that you pay him rent.

_yosefk 10y ago
Your analogy is pretty precise up to the "naked" part. I've heard pretty bad things about Getty Images from their customers (much more expensive than competitors, much worse customer service.) Naked I've never heard...
- pavel_lishin 10y ago
  I'm going to add a post-hoc rationalization that has something to do with it being a ballsy move, though I wasn't thinking of that at the time...
  - logfromblammo 10y ago
    To distinguish from a nudist's casual disregard for garments and a hermit's inability to acquire substantial coverings, perhaps it would be better if Getty were not entirely naked, but instead had its underpants dropped to its ankles. That says, "I own clothes, and usually wear them in a socially acceptable way, but I made an exception just for you and your formerly unstinky couch cushions."
steego 10y ago
Copyright thugs have been punishing people with outrageous fines and settlements for years. $1B doesn't seem excessive. Live by the sword. Die by the sword.
- gozur88 10y ago
  That's my take as well. It's bad enough companies make legitimate but lazy mistakes like filing DMCA strikes against works with the same name as something they own. But it seems like the absolute minimum you ought to do is make sure beyond a doubt you own what you claim to own.
dublinben 10y ago
It's likely that Getty have also fraudulently charged many other customers licenses for these photos. It's not inconceivable that each of them could individually sue Getty for their own damages. This looks like it could become a very expensive case of sloppy (or deliberately negligent) copyright overreach.
- morninj 10y ago
  Nit: by definition, negligence can't be deliberate. Edit: "negligence" means you should have known of the risk. "Recklessness" means you knew of the risk but acted anyway.
  - newman314 10y ago
    "Extremely careless" Sorry, could not resist.
  - simpsond 10y ago
    https://en.m.wikipedia.org/wiki/Gross_negligence https://en.m.wikipedia.org/wiki/Gross_negligence
    - morninj 10y ago
      "Gross negligence" means you really really should have known of the risk. But it's still a contradiction to say that someone was deliberately grossly negligent.
      - finnh 10y ago
        Not really, I don't think. That's basically the idea behind deniability - you kinda sort know about something, but you kinda sort make sure you never actually know about it. Gross negligence is often more along the lines of "we are 99.999% sure you are lying, but we can't prove it".
        morninj 10y ago
overcast 10y ago
First rule of any price negotiation, always start WAY too high :) On a serious note, Getty has been doing this underhanded shit for ages, and the amount they pay photographers is even worse. From what I've read, they don't even report to photographers, who downloaded their works. So there really is no accountability, on how many you REALLY sold. It's shady nonsense.
mikeash 10y ago
It's only about twice the statutory damages. And it looks like the article is only using $25,000 per work for that number. For willful infringement, statutory damages can go up to $150,000, which would be about $2.8 billion for 18,755 photos here. I'd say she's being fairly generous by offering to settle for a mere $1 billion!
- thehashrocket 10y ago
  Maybe she's taking a play out of their own book? "We could have sued you for this much, but instead we're offering you a chance to settle for only this amount."
  - Fuxy 10y ago
    Ha ha... funny. I would have sued them for the full amount the law permitted for each image if the company goes under as a result that would act as example/discouragement for any other company that would think about doing that in the future. People get fined ridiculous amounts all the time as discouragement so why shouldn't companies have the same happen to them their technically a person in the US no?
    - rbanffy 10y ago
      If the company goes under because it can't make the full payment, I'd accept a transfer of the remaining copyrights and promptly place everything in the public domain.
- anarres 10y ago
  It's because she's asking under DMCA 1202/1203, false copyright information, not for infringement.
codingdave 10y ago
Yes, $1B sounds excessive... but that is also a valid legal strategy -- making your complaint cover everything under the sun, for as much damages as possible, expecting their lawyers to fight each point and amount, and hopefully the end result is something you actually find acceptable.
- protomyth 10y ago
  It might be excessive, but we are talking about 18,755 images, and I bet Getty has won cases over single images in the $55,000 range. Its only fair they pay the same that they won from others.
- Fuxy 10y ago
  It's not excessive it's too low now $1B per image would be excessive but not unheard of so still fair. Now $18,755B would make for a nice discouraging lawsuit that make any other company think twice about pulling this ever again. I want Getty to go bankrupt as a result of the lawsuit. I'm evil I know but it's what they would have done so I see nothing wrong with that.
Lagged2Death 10y ago
While $1B seems excessive, and more of a number to make a point... Broadly speaking, the "content industry" has habitually been dragging individual file-sharers into court and claiming life-altering, bankruptcy-forcing judgements for more trivial violations, in order to terrify the general public into compliance. If the threat of a $1B judgement is enough to threaten Getty with bankruptcy, if it's enough to scare other rights-claimers into making their businesses more businesslike, that's actually very comparable.
jliptzin 10y ago
I very much hope that a $1B judgment is enough to put Getty Images out of business based on their terrible practices but sadly I would imagine it would take much more than that.

StavrosK 10y ago

Isn't the problem here that she donated all her photos to the Library of Congress without clarifying what that meant? Apparently, the LoC thought that the photos were placed in the public domain, and the photographer thought she was retaining the copyrights. Also, why the hell is Getty charging for public domain photos? Are they not aware that people can use those without paying Getty?

rm999 10y ago
> "Ms. Highsmith has stipulated that her photographs are in the public domain" - Library of Congress (http://www.loc.gov/rr/print/res/482_high.html http://www.loc.gov/rr/print/res/482_high.html) > "Highsmith says she never abandoned her photo copyrights" -article Yikes, that seems like a big misunderstanding. I would guess the LOC has a process to transfer the ownership of photos. If so, she probably signed away her copyrights without realizing it (???) Either way, what Getty is doing is terrible and wrong. I don't see how she can sue for copyright damages if she doesn't have the copyright, but I hope they're punished for it. I'm not a lawyer, so someone please correct me if I'm misunderstanding something here.
- anarres 10y ago
  I believe you are correct, but I suspect that's why she's not actually asking damages for copyright infringement, but for DMCA false copyright information. Anyone injured by that can sue: https://www.law.cornell.edu/uscode/text/17/1203 https://www.law.cornell.edu/uscode/text/17/1203 It's a really big deal that this obscure section in DMCA (1202/1203) can be used for this, and I believe she has a good case.
pavel_lishin 10y ago
> Isn't the problem here that she donated all her photos to the Library of Congress without clarifying what that meant? No, because > why the hell is Getty charging for public domain photos? There is no amount of clarification there that allows Getty to charge for something. Either it's in the public domain, in which case they have no right to charge for use of the photos, or it's not, in which case they have no right to charge for the photos. I'd wager that this is some sort of colossal business fuck-up that's not anyone's fault. Mostly because I can't imagine anyone so baldly stealing money.

donatj 10y ago

So the library of congress says they're public domain. If they're public domain are you not free to sell copies of them? Such as how you can sell copies of famous paintings or copies of Firefox for that matter. If they're not actually public domain shouldn't she be suing the library of congress for misrepresenting the license? Yes, if they're public domain Getty shouldn't be trying to enforce ownership but that seems their only misdeed.

pavel_lishin 10y ago
You might be able to sell prints, but you can't sell the rights to display those prints. You certainly can't come into people's homes and demand that they pay you for a copy you got from the Library itself.
- stevefeinstein 10y ago
  I think you can, if you generate a derivative work. And I would bet that could be something as insignificant as color correction of the image.
  - dpark 10y ago
    Pretty sure that doesn't qualify as a derivative work. Changes must be substantive. Otherwise correcting a typo in a book would give you a copyright for that correction, preventing others (including the original publisher) from making the same correction. Moreover, the photographer here certainly didn't use any "derivative" from Getty. So even if Getty could claim copyright on their "derivative", they cannot justly claim copyright over the original.

Smushman 10y ago

Using some examples from the comments of the article: It's akin to Getty setting up a small tent inside of Central Park, and asking people that walk by to pay an entry fee. But Getty goes 1 step further: They hire strongarm guys to go around the park and tell people (one-on-one) that they skipped out on their 5 dollar entry fee and they can 'settle' with them right now or be taken to court. It's terrible. I can't imagine how to solve that without a total change of copyright laws, other than scare the bejesus out of them. Which seems to be exactly what the photographer is doing.

jimbokun 10y ago
"I can't imagine how to solve that without a total change of copyright laws" What? Sounds more like they are in flagrant violation of existing copyright laws, and deserve to get their head handed to them in court.
- emodendroket 10y ago
  I suppose the point is that the current laws are difficult to enforce and the process is ripe for abuse.
- Natsu 10y ago
  I think they wanted to avoid the situation rather than punish it after the fact.
- derefr 10y ago
  Laws have denotative semantics—what they strictly allow, and what they strictly don't. But any given law will also create (or modify) an incentive structure. Copyright has a problem, in that IP rights get more profitable as you get closer and closer to being in violation of the law. The incentive that creates is for everyone to try to violate the spirit, but not the letter of copyright law. A better law would fix the incentives: to make copyright "abuse" a sliding scale, one that starts long before the current point where something becomes a violation of the law, where the more profitably-abusive an act is, the bigger a fine you'll get for doing it. The cost-benefit should always work out in favor of not violating the spirit of copyright law.

deleted 10y ago

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ComodoHacker 10y ago

>she found out about Getty Images charging for her photos when she was sent a letter from Getty that demanded she pay for her own photo that was being displayed on her own website Such insolence should be punished hard.

CodeSheikh 10y ago

People working at Getty and blindly sending cease-and-desist letters should be fired at once. These guys are similar to debt collectors and harassment is their virtue. They could have at least spend sometime time researching about her. Maybe Getty would have been $1 Billion richer today. She should be compensated for something at least.

cloudjacker 10y ago

> public domain > but are falsely and fraudulently holding themselves out as the exclusive copyright owner (and suing others) So the federal government should be suing them instead of the photographer? It doesn't seem like the copyright office has its own enforcement agency, so it probably would be up to the photographer to start a proceeding, since nobody else will. This makes her attempt to get copyright damages to be a red herring which could undermine her entire case. Therefore, I realize she has no claims, except the single one where Getty tried to sue her for using her own public domain images.

jahewson 10y ago
No, the images are not actually public domain. She owns the copyright and Getty have infringed her copyright thousands of times. She has many big claims.
anarres 10y ago
DMCA 1203 doesn't require copyright ownership to sue. (check it) I understand why you assume she needs a copyright, but read the actual complaint and causes of action. Indeed she sues for copyright and DMCA, but asks for damages under DMCA. If copyright fails, it doesn't affect the rest.

6stringmerc 10y ago

My goodness gracious, I hope she wins and helps inform other Copyright-based individual professionals of the avenues that are available when one's work is being exploited in ways that aren't legal (the whole "pay us a penalty" aspect here, not the selling Public Domain stuff which is okay). Good for her. Will stay tuned to see how this plays out.

mortenjorck 10y ago

I’m seeing lots of analogies here, but are they really necessary? A rights company notorious for fiercely defending its own copyrights flagrantly violates those of a photographer, appropriating and then aggressively defending illegitimate copyright over her work. Is this not a straightforward enough situation to explain without the overhead of analogy-making?

tmd83 10y ago

This is beyond shameless but I'm not surprised that this happens. Big players of copyright seems be doing this sort of thing all the time and getting away with it. This comes from the same mindset that allow a original video by the author to be put off youtube by a big studio. I think I read that big recording studios similarly uses lesser known artists songs in records under some weird law (pretending they couldn't find the copyright holder) and basically strongarm them if they come out and complaint. Does anyone know if its true and provide reference? Essentially the legal system worldover is extremely for the power broker. The ones who needs the least protection gets the most and those that need it in most cases cannot even afford the least.

cookiecaper 10y ago
Yes. This is becoming ever-more-salient as large portions of the programming that airs on multi-national news organizations comprises original content posted to social media and owned by the user that originally authored it. Just in the last month we have Nice, Dallas, and Turkey, where it felt like all the news orgs were doing was reading tweets and playing back 60-second clips that people were posting online. On the one hand, news orgs probably have a reasonable fair use case there, but on the other, they are profiting off content that the OP owns, and OP is rightly entitled to a portion of that evening's advertising proceeds if their content comprises a substantial part of the programming. If someone snippeted CNN and played it repeatedly on their own channel as fair use, they'd get pursued hard, be unable to fund the legal battle, and be forced to do whatever CNN said lest a long and ruinous legal battle occur with spotty if any representation for the little guy. It'd a big multi-national law firm that bills at $1k/hr v. an innocent little person who probably doesn't know any legal terms at all and would be lucky to have $10k in savings. Meanwhile, CNN and other large companies will openly trounce anyone and everyone they can because they understand that only a tiny fraction will actually be in a position to hurt them for it, and they'll try to leave that tiny fraction alone if they can help it. You'll try to sue them for an injustice and for the $20k they owe you and it'll explode into an 8-year, multi-million legal battle. The little guy still gets completely screwed over. Since big companies know this, they take full advantage and effectively, operate under a different set of laws from the rest of us. The easy way to mitigate this specific problem wrt copyrights is to reform copyright law so that we no longer divert a grossly disproportionate amount of money into content companies and so that they don't file lawsuits that there is no hope of winning, but it doesn't really solve the larger issue, which is that the legal system is only really available and functional for those with the capacity to spend $10 million on lawyers at any given time. Unfortunately, it doesn't seem that we're going to resolve that during the lifetime of anyone currently living.

DiabloD3 10y ago

Honestly, I hope she wins, and then donates a huge chunk of it to some worthy cause just to further piss on Getty. It's okay that Getty lists high quality images that are public domain or restriction free as part of their search engine, but it is beyond ethically wrong to charge money for them.

chrismcb 10y ago
Why is it unethical to charge for public domain images? I'm not saying this is what happened here, but there are many reasons to charge for public domain images, and for someone to pay. One big reason is for proof they are public domain. If my business was using images, I would want to make sure I have the right to republish those images. Even if that means I have to pay for public domain images. Getty is providing a service and they are charging for it. Sure, perhaps you can go elsewhere to get those same images for free... Then you should do so if you don't want to pay the fee. But there is nothing unethical about charging for public domain images... Now sueing people because they didn't not pay you for those images is wrong. The federal good government needs to get involved in this as well.

wavefunction 10y ago

I will just point out that the two statements that "the photos are in the public domain" and "she never abandoned her photo copyrights" are not in opposition. Orphaned works (abandoned copyright) can be subject to re-copyrighting by another party from what my laymen's understanding of copyright law is. Instead she specifically stipulated that these photos are in the public domain and so Getty is obviously operating under bad-faith principles.

visarga 10y ago
The problem is not that they charged money for the photos. They can do that for public domain works. The problem is that they sent C&D letters to other people who used the same work, even though they were not entitled to. But then, unfortunately, this could be filed as a simple DMCA notification error and would not entitle the author to 150,000$ in damages per work. She will receive only an apology. And this is how Getty gets to strongarm the less rich artists and only have to say "sorry" when they can't win.
chrismcb 10y ago
Yes, those two statements are in direct opposition. A work in public domain has no copyright. If she kept the copyright, the works are not in public domain.
- wavefunction 10y ago
  Abandoning copyright is different than assigning the works to the public domain from what I know. One is an explicit act (moving works into the public domain) and the other is simply a sin of omission.

awqrre 10y ago

Maybe someone should analyze all other images hosted by Getty to find other infringements...

triangleman 10y ago

A google search returned this PDF as the actual court filing: http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=2249&context=historical http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?articl...

amalag 10y ago
This is interesting in there: 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.

Smushman 10y ago

The fact that their internal processes show total indifference as to whether a photo is sourced from Public Domain or any other source speaks volumes about their attitudes re: the art they sell; and from the top of the company down. It shows their #1 priority was collecting as many pieces of work as they could, and their #2 effort was reinforcing their payment system (a la threats if you don't pay). No where in that equation was the artist, the art itself, or any related interests. They only cared about being the middleman and acted like it.

bencollier49 10y ago

A lot of people here seem to be taking issue with the fact that the photographer donated her works to the Library of Congress. As it happens, she's apparently bringing the case under the DMCA's provision for false attribution of copyright, and has addressed the issue of donation in the brief. Good luck to her.

mijoharas 10y ago

Looking at the actual legal filing[0] it seems that the relevant section is 35: 35. Since approximately 1988, Ms. Highsmith has made her photographs available to the public for free through the U.S. Library of Congress, thereby exercising her exclusive rights under 17 U.S.C. § 106 to distribute copies of her copyrighted work to the public by sale or other transfer of ownership, and to authorize others to do so Now looking at what 17 U.S.C. § 106 says[1], it appears that they are claiming that she did not transfer her copyright over to the Library of Congress to put the works in the public domain, but merely provided the library of congress with the right to distribute copies of the work to the public. (Not a lawyer). [0] http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=2249&context=historical http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?articl... [1] https://www.law.cornell.edu/uscode/text/17/106 https://www.law.cornell.edu/uscode/text/17/106

jahewson 10y ago
> did not transfer her copyright over to the Library of Congress to put the works in the public domain This isn't a thing. There's no well-defined mechanism by which that could be done.

Animats 10y ago

Read the court filing. She can win this. She owns the rights to the images. She licensed the Library of Congress to distribute them for free, but did not release them into the public domain. Getty is selling her images. That's a for-profit DMCA violation. The statutory penalty applies, which is from $750 per image to $30,000 per image. She makes a case that the higher end of the scale should apply, because some of her images are quite famous. Two have appeared on US stamps, for example. Getty recently lost a DMCA case for doing something similar. That makes this a second offense and triggers the triple damages provision in the DMCA. So, as a matter of law, she is entitled to at least 18,755 * $750 * 3, or about $42 million. That's a minimum.

jahewson 10y ago
The DMCA isn't the most important part here, the (classical) infringement itself is the big factor, because the images are under the photographer's exclusive copyright. Adding the DMCA claim of falsifying copyright information certainly helps her case though. Having said that, if it turns out that the library of congress is responsible for the infringements (because they published the images and labelled them incorrectly as being public domain) then Getty would be off the hook for infringement but the DMCA claim of falsifying the copyright information would still apply (as you can't claim exclusive copyright over a public domain work). I suppose it's possible that an unscrupulous third party falsely licensed the "public domain" images to Getty, which would make Getty responsible for neither the falsification of copyright information, nor the infringement. I guess in that case Getty would still be found to have been infringing, but not deliberately.
- dragonwriter 10y ago
  > Having said that, if it turns out that the library of congress is responsible for the infringements (because they published the images and labelled them incorrectly as being public domain) then Getty would be off the hook for infringement It seems to me that mislabeling wouldn't make the LoC legally responsible for the infringement, but might make Getty not liable for any infringement that happened entirely before they were made aware of the incorrect labeling. Or maybe not; since willfulness is an enhancement on liability for infringement liability [0], not a prerequisite, the fact that Getty did not know that the images were subject to copyright may not be a defense. > I suppose it's possible that an unscrupulous third party falsely licensed the "public domain" images to Getty, which would make Getty responsible for neither the falsification of copyright information, nor the infringement. AFAICT, that wouldn't necessarily legally relieve Getty of liability, though it would make the other party liable to the copyright owner for willful infringement, fraudulent claims of ownership, and contributory infringement (with regard to Getty's infringement), and also liable to Getty for fraud and potentially other torts. [0] see, e.g., 17 U.S.C. Sec. 504(c)(2)

vvanders 10y ago

Ars has some good coverage of this as well: http://arstechnica.com/tech-policy/2016/07/photographer-sues-getty-images-for-selling-photos-she-donated-to-public/ http://arstechnica.com/tech-policy/2016/07/photographer-sues... > 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.

deleted 10y ago

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jwilk 10y ago

If CloudFlare hates you, here's an archived copy: https://archive.is/Bmpg4 https://archive.is/Bmpg4

williamle8300 10y ago

I believe this is why the Creative-Commons license was created. It stipulates how others can use your free-to-use intellectual property.

kilotaras 10y ago

There's a story about Deep Purple getting similar demands for their concert in Russia in 2008. They went to court...and lost. [1] [1] http://bravewords.com/news/deep-purple-ordered-to-pay-royalty-to-themselves-in-russia http://bravewords.com/news/deep-purple-ordered-to-pay-royalt...