11 ms·

Photographer sues Getty Images for $1B for being billed for her own photo (2016)

402 points by vezycash 7y ago

dredmorbius 7y ago
2016
dredmorbius 7y ago
Unfortunately the case was thrown out of court: The company said the suit was the result of several misunderstandings, and that they would “defend ourselves vigorously.” Highsmith had no right to claim misuse or infringement, said Getty, because she gave up that right when she donated her images into the public domain. In late October, the courts agreed with Getty, basically destroying Highsmith’s case. https://petapixel.com/2016/11/22/1-billion-getty-images-lawsuit-ends-not-bang-whimper/ https://petapixel.com/2016/11/22/1-billion-getty-images-laws...
- kristofferR 7y ago
  There's nothing unfortunate about it. It would set a very bad precedent if content in the public domain, freed from copyright law, would still be subject to arbitrary usage limits. If you want to release something for free with conditions, use other licences like Creative Commons instead.
  - BrianHenryIE 7y ago
    > if content in the public domain, freed from copyright law, would still be subject to arbitrary usage limits. But that's not what happened. The content was placed in the public domain. Then the author was notified > your company does not have a valid license for use of the image(s) If you want to release something for free without conditions, it should not be subject to conditions by those who did not create it
  - diffeomorphism 7y ago
    > would still be subject to arbitrary usage limits. Didn't the ruling achieve the exact opposite? Getty took public domain images and added arbitrary usage limits on them by (fraudulently) claiming to be the sole copyright holder. Taking the images and using them for whatever is fine, taking them and then trying to forbid anybody else from taking them (the originals, not getty's copies) is not and unrelated to the license.
    - bootloop 7y ago
      If they are public domain you can do with it whatever you want. Also republish them, charge money for it or limit usage. That's the point of it. So everything is fine. BUT, if someone prints the images and ignores any usage limits and then gets sued you might just get a jail free card because you can claim that's anyway public domain.
      - daveFNbuck 7y ago
        You may be able to limit usage of your own derivative works, but you can't just declare that everyone using a public domain image owes you royalties.
      - Hamuko 7y ago
        Like blackmail people into paying a licensing fee with the threat of legal action?
      - diffeomorphism 7y ago
        > Also republish them, charge money for it or limit usage Of your copy or derivative work, not of the public domain one you copied. The fact that they tried to force their limits on other people using the public domain works is what is the issue here and is not fine. > you might just get a jail free card because you can claim That seems entirely the wrong way around. Getty knows it is public domain because that is where they got it from. The fact that they sue for damages despite this should put them in contempt of court and not me in a position where I have to defend myself.
        7y ago
  - blowski 7y ago
    I know pretty much nothing about copyright law. Are you saying that the US Library of Congress or the photographer released them under the wrong kind of license?
    - chrismcb 7y ago
      No. The photos were placed into public domain, copyright free. Anyone can copy them # but it also means anyone can sell them.
      - TheOtherHobbes 7y ago
        I'm still not clear how being able to sell them seems to mean they can demand licensing fees from anyone who uses the image - effectively claiming they are the sole and exclusive rights holder. I understand that Getty can license PD images through their own site. Legally this seems to be covered by caveat emptor and by the fact that Getty provide search and indexing services to users. But trying to demand licensing rights for a PD image from users who have found the image through another channel[1] is a whole other thing, and seems more like a plain old monopolistic land grab, bordering on extortion. I'm surprised - although not entirely, for cynical reasons - that the court didn't pursue this argument. "Mistakes were made" isn't really a mitigation here. Besides, I'm not sure it's even possible to place work into the public domain under US law without a formal written waiver of moral rights. [1] Including their own camera.
        smaryjerry 7y ago
        My guess why Getty won the lawsuit is because lawsuits are in order to grant damages and she wasn't able to prove monetary damages to herself as it was already in the public domain. Unfortunately there is very much law enforcement against entities falsely claiming copyrights, especially those that technically have no owner. It seems hard enough for you tubers who get claimed by copyright troll companies constantly and steal their advertising revenue.. or YouTube technically steals and res distributes to the copyright troll. Even those cases you won't see criminal charges or even civil or monetary charges unless the copyright holder wants to go to court. It's basic time scamming. Copyright trolls can claim 100 million videos in the time it takes one person to defend one of those claims. Basically every day these companies make claims that would take the combined lifespan of the entire world to defend against.
  - dredmorbius 7y ago
    I'm not entirely sure how moral rights of authors operates under US law, when or whether such rights extinguish, or what the penalties for infringement are. Under EU copyright, this is a quite strong provision. US governing law would seem to be 17 USC 106A, noting it applies specifically to visual work (as in this case): Rights of Attribution and Integrity.—Subject to section 107 and independent of the exclusive rights provided in section 106, the author of a work of visual art— (1)shall have the right— (A)to claim authorship of that work, and (B)to prevent the use of his or her name as the author of any work of visual art which he or she did not create; https://www.law.cornell.edu/uscode/text/17/106A https://www.law.cornell.edu/uscode/text/17/106A Under 17USC106A(d)(1) the rights "shall endure for a term consisting of the life of the author.* The 107 exemptions are for fair use, which would not apply to Getty's usage claiming exclusive rights. The broader problem would seem to be that releasing works to the public domain cedes critical rights, most especially of enforcement against misappropriation or unsupported claims of copyright. Getty clearly might be (and per some comments on this thread are) engaging in little more than shake-down rackets based on specious copyright claims. An attention-grabbing penalty for such behaviour seems warranted. Apparently US courts see the sanctity of privately or corporately-owned property, but not the property of the public as a whole (public domain).
    - Meph504 7y ago
      When she donated the works, she relinquished all copyright, and the works moved into public domain. These images are for all intensive purposes not owned by anyone, and anyone can do what they see fit with them. (this is where the Getty lawsuit should have focused, as they don't have the right to make claims to the images either, unless the work she published was copied from getty's servers which have lisc restrictions on them [which is a loophole that should be closed]) its unfortunate for the artist, but as others have said, she gave up all rights to the works by placing them in the public domain. You can see the documentation stating she gave those rights up on the LOCs website (https://www.loc.gov/rr/print/res/482_high.html https://www.loc.gov/rr/print/res/482_high.html)
      - sokoloff 7y ago
        “intents and purposes” not “intensive purposes”
  - foobarbecue 7y ago
    Ok for them to sell it. Not ok for them to send threats to others for using it.
  - anigbrowl 7y ago
    What about the bad precedent of companies like Getty trying to collect rents on public domain works? It's a two way street. Please don't tell me the solution is better consumer education while corporations are allowed to keep lying about owning IP - that's just shifting the burden to those least well equipped to handle it and treating individuals like the aggregate of all consumers who are presumed to be fully informed about market conditions, a fallacy of division.
peteretep 7y ago
> As for the now-infamous collections letter, Getty painted it as an “honest” mistake that they addressed as soon as they were notified of the issue by Highsmith. I'd like to see the working on that. How did the mistake happen? How will they stop it happening again? Are they regularly emailing people threatening emails about Library of Congress photos?
- madaxe_again 7y ago
  It’s automated. I ended up mediating a silly situation between Getty and a client about six years ago. The client is a manufacturer of consumer goods, mostly kitchenware. They own a boatload of brands. In 2014 or so they did a mountain of photography to reposition an existing professional cookware brand for consumers - lots of lifestyle shots, as well as your usual product shots. They made the images available in an online, access controlled library for their customers to use in their marketing. About six months after this branding pack is made available, we hear from the client that their customers are getting large payment demands (tens of thousands, in some cases) from Getty for the images that the client provided. We approached getty on the client’s behalf, as they were just bewildered and didn’t know where to even begin. It took about two months to sort out - we had to repeatedly explain the situation, while they argued that they owned the images, and had to go through a lengthy process proving that the client owned the images. Burden of proof was totally on us, and we were getting nowhere fast. While looking at some of the supposedly infringing images, we noticed an incredibly faint watermark embedded in one of them that specified the site that the image had been rendered on - an unprotected image library on one of the client’s customer’s sites. From here, it transpired that Getty had hoovered up everything in that library, assumed rights, and was selling it. Once we started pushing the tack that they had broken several laws by accessing a computer system that was not intended to be available for them to access, and had stolen images from there, the whole thing, along with all of the images on Getty from that library, vanished. They never even responded. Our takeaway here was that Getty use bots to find large collections of unique high-res images on sites that aren’t explicitly copyrighted, and just take them, on the odds that they’ll get away with it. We encouraged the client to sue them for damages, but they were so relieved that the problem had gone away that they just wanted to move on. I’d wager this isn’t a unique experience.
Urgo 7y ago
Mods can we get a [2016] in the title?
kstenerud 7y ago
As a business model it makes perverse sense: 1. Use bots to vacuum up as many images as you can online, and claim ownership. 2. Use bots to search for infringement and automatically send claim letters against them. 3. For any pushback, have a team of lawyers and clerks of various grades to deal with situations as they escalate. Push or capitulate after sizing up the opponent. Most people either just want it over, or don't have the means to fight back for any length of time. The money you make from such a scheme would far outweigh the legal costs due to the scale of the automated income. It would only become problematic if someone else started a rival company, at which point they'd need to set up an oligopoly agreement to avoid destroying one another with their bots.
- jopsen 7y ago
  I suspect you eventually go to jail on fraud charges. Getty can probably argue that they made a mistake when classifying the image. But this argument only works if you have rights to a lot of legitimate works. (Disclaimer: I'm no lawyer)
  - kstenerud 7y ago
    It would more likely be fines, especially once you're big enough to pull strings. It wouldn't be too much trouble to add "copyright checker" code to the bots that's good enough to provide a fig leaf for your defense. Automated large-scale systems make mistakes all the time, after all. Pay the fines, do the minimum work necessary to comply with the court order, rinse and repeat, and keep your PR team on standby.
    - jopsen 7y ago
      Fair enough, maybe I should have said that in theory they could go to jail for fraud. In practice, it's unlikely that even a dedicated scam operation gets the attention of the authorities.. it rarely happens, probably because there are more serious crimes to prosecute.
  - dmitriid 7y ago
    > I suspect you eventually go to jail on fraud charges You don't. At most you get slapped with a 1.5 million dollar fine. Getty's revenue is ~1 billion dollars. This gets written of as minor expense. In all other cases you team of lawyers gets the court to dismiss the case.
foxx-boxx 7y ago
Clickbait
deleted 7y ago
[deleted]
choonway 7y ago
the only way for all of this to work out (for all parties involved) is if there is another superpower nation with nuclear weapons with laws that punishes these sort of behavior and all the tech talent flows there.
shamaku 7y ago
Extortion The obtaining of property from another induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.
dillonmckay 7y ago
So, in the US, how does one put their IP into the public domain, without dying and waiting many years? I had thought this would be a license, not a waiver.
- HeadsUpHigh 7y ago
  My understanding is that public domain means no license, no nothing. So anyone can sell a copy of it( claiming copyright like in this case is a different story). A licensed piece is not in the public domain. As the creator you can dictate the terms of use, and you do so with a license which basically allows everyone to use the piece( or for certain use-cases depending on the license). Think of it as a hack: a licensed piece is still copyrighted, and will enter the public domain when the copyright expires( or the sun blows up, whichever comes first).
  - dillonmckay 7y ago
    By default, you creating a creative work, you have the copyright.
  - JJMcJ 7y ago
    Look at the Unlicense: https://unlicense.org/ https://unlicense.org/ It releases into the public domain, where possible, and has a paragraph that comes as close as possible to the public domain in jurisdictions where that release isn't possible. I think the idea in the referenced case is that a release to the public domain means that the author gives up all interest in the work. Not to really defend Getty Images, which seems to be acting out of line.
dana321 7y ago
So, they took public domain, added a watermark and claimed copyright? Its a case of using the wrong license if they didn't want this to happen. They should have used Creative Commons.
loraa 7y ago
When all else fails... Become a photographer.
ArtDev 7y ago
I hope they make an example of Getty.

402 points by vezycash 7y ago

2016

Unfortunately the case was thrown out of court: The company said the suit was the result of several misunderstandings, and that they would “defend ourselves vigorously.” Highsmith had no right to claim misuse or infringement, said Getty, because she gave up that right when she donated her images into the public domain. In late October, the courts agreed with Getty, basically destroying Highsmith’s case. https://petapixel.com/2016/11/22/1-billion-getty-images-lawsuit-ends-not-bang-whimper/ https://petapixel.com/2016/11/22/1-billion-getty-images-laws...

kristofferR 7y ago
There's nothing unfortunate about it. It would set a very bad precedent if content in the public domain, freed from copyright law, would still be subject to arbitrary usage limits. If you want to release something for free with conditions, use other licences like Creative Commons instead.
- BrianHenryIE 7y ago
  > if content in the public domain, freed from copyright law, would still be subject to arbitrary usage limits. But that's not what happened. The content was placed in the public domain. Then the author was notified > your company does not have a valid license for use of the image(s) If you want to release something for free without conditions, it should not be subject to conditions by those who did not create it
- diffeomorphism 7y ago
  > would still be subject to arbitrary usage limits. Didn't the ruling achieve the exact opposite? Getty took public domain images and added arbitrary usage limits on them by (fraudulently) claiming to be the sole copyright holder. Taking the images and using them for whatever is fine, taking them and then trying to forbid anybody else from taking them (the originals, not getty's copies) is not and unrelated to the license.
  - bootloop 7y ago
    If they are public domain you can do with it whatever you want. Also republish them, charge money for it or limit usage. That's the point of it. So everything is fine. BUT, if someone prints the images and ignores any usage limits and then gets sued you might just get a jail free card because you can claim that's anyway public domain.
    - daveFNbuck 7y ago
      You may be able to limit usage of your own derivative works, but you can't just declare that everyone using a public domain image owes you royalties.
    - Hamuko 7y ago
      Like blackmail people into paying a licensing fee with the threat of legal action?
    - diffeomorphism 7y ago
      > Also republish them, charge money for it or limit usage Of your copy or derivative work, not of the public domain one you copied. The fact that they tried to force their limits on other people using the public domain works is what is the issue here and is not fine. > you might just get a jail free card because you can claim That seems entirely the wrong way around. Getty knows it is public domain because that is where they got it from. The fact that they sue for damages despite this should put them in contempt of court and not me in a position where I have to defend myself.
      - 7y ago
- blowski 7y ago
  I know pretty much nothing about copyright law. Are you saying that the US Library of Congress or the photographer released them under the wrong kind of license?
  - chrismcb 7y ago
    No. The photos were placed into public domain, copyright free. Anyone can copy them # but it also means anyone can sell them.
    - TheOtherHobbes 7y ago
      I'm still not clear how being able to sell them seems to mean they can demand licensing fees from anyone who uses the image - effectively claiming they are the sole and exclusive rights holder. I understand that Getty can license PD images through their own site. Legally this seems to be covered by caveat emptor and by the fact that Getty provide search and indexing services to users. But trying to demand licensing rights for a PD image from users who have found the image through another channel[1] is a whole other thing, and seems more like a plain old monopolistic land grab, bordering on extortion. I'm surprised - although not entirely, for cynical reasons - that the court didn't pursue this argument. "Mistakes were made" isn't really a mitigation here. Besides, I'm not sure it's even possible to place work into the public domain under US law without a formal written waiver of moral rights. [1] Including their own camera.
      - smaryjerry 7y ago
        My guess why Getty won the lawsuit is because lawsuits are in order to grant damages and she wasn't able to prove monetary damages to herself as it was already in the public domain. Unfortunately there is very much law enforcement against entities falsely claiming copyrights, especially those that technically have no owner. It seems hard enough for you tubers who get claimed by copyright troll companies constantly and steal their advertising revenue.. or YouTube technically steals and res distributes to the copyright troll. Even those cases you won't see criminal charges or even civil or monetary charges unless the copyright holder wants to go to court. It's basic time scamming. Copyright trolls can claim 100 million videos in the time it takes one person to defend one of those claims. Basically every day these companies make claims that would take the combined lifespan of the entire world to defend against.
- dredmorbius 7y ago
  I'm not entirely sure how moral rights of authors operates under US law, when or whether such rights extinguish, or what the penalties for infringement are. Under EU copyright, this is a quite strong provision. US governing law would seem to be 17 USC 106A, noting it applies specifically to visual work (as in this case): Rights of Attribution and Integrity.—Subject to section 107 and independent of the exclusive rights provided in section 106, the author of a work of visual art— (1)shall have the right— (A)to claim authorship of that work, and (B)to prevent the use of his or her name as the author of any work of visual art which he or she did not create; https://www.law.cornell.edu/uscode/text/17/106A https://www.law.cornell.edu/uscode/text/17/106A Under 17USC106A(d)(1) the rights "shall endure for a term consisting of the life of the author.* The 107 exemptions are for fair use, which would not apply to Getty's usage claiming exclusive rights. The broader problem would seem to be that releasing works to the public domain cedes critical rights, most especially of enforcement against misappropriation or unsupported claims of copyright. Getty clearly might be (and per some comments on this thread are) engaging in little more than shake-down rackets based on specious copyright claims. An attention-grabbing penalty for such behaviour seems warranted. Apparently US courts see the sanctity of privately or corporately-owned property, but not the property of the public as a whole (public domain).
  - Meph504 7y ago
    When she donated the works, she relinquished all copyright, and the works moved into public domain. These images are for all intensive purposes not owned by anyone, and anyone can do what they see fit with them. (this is where the Getty lawsuit should have focused, as they don't have the right to make claims to the images either, unless the work she published was copied from getty's servers which have lisc restrictions on them [which is a loophole that should be closed]) its unfortunate for the artist, but as others have said, she gave up all rights to the works by placing them in the public domain. You can see the documentation stating she gave those rights up on the LOCs website (https://www.loc.gov/rr/print/res/482_high.html https://www.loc.gov/rr/print/res/482_high.html)
    - sokoloff 7y ago
      “intents and purposes” not “intensive purposes”
- foobarbecue 7y ago
  Ok for them to sell it. Not ok for them to send threats to others for using it.
- anigbrowl 7y ago
  What about the bad precedent of companies like Getty trying to collect rents on public domain works? It's a two way street. Please don't tell me the solution is better consumer education while corporations are allowed to keep lying about owning IP - that's just shifting the burden to those least well equipped to handle it and treating individuals like the aggregate of all consumers who are presumed to be fully informed about market conditions, a fallacy of division.

peteretep 7y ago

> As for the now-infamous collections letter, Getty painted it as an “honest” mistake that they addressed as soon as they were notified of the issue by Highsmith. I'd like to see the working on that. How did the mistake happen? How will they stop it happening again? Are they regularly emailing people threatening emails about Library of Congress photos?

madaxe_again 7y ago
It’s automated. I ended up mediating a silly situation between Getty and a client about six years ago. The client is a manufacturer of consumer goods, mostly kitchenware. They own a boatload of brands. In 2014 or so they did a mountain of photography to reposition an existing professional cookware brand for consumers - lots of lifestyle shots, as well as your usual product shots. They made the images available in an online, access controlled library for their customers to use in their marketing. About six months after this branding pack is made available, we hear from the client that their customers are getting large payment demands (tens of thousands, in some cases) from Getty for the images that the client provided. We approached getty on the client’s behalf, as they were just bewildered and didn’t know where to even begin. It took about two months to sort out - we had to repeatedly explain the situation, while they argued that they owned the images, and had to go through a lengthy process proving that the client owned the images. Burden of proof was totally on us, and we were getting nowhere fast. While looking at some of the supposedly infringing images, we noticed an incredibly faint watermark embedded in one of them that specified the site that the image had been rendered on - an unprotected image library on one of the client’s customer’s sites. From here, it transpired that Getty had hoovered up everything in that library, assumed rights, and was selling it. Once we started pushing the tack that they had broken several laws by accessing a computer system that was not intended to be available for them to access, and had stolen images from there, the whole thing, along with all of the images on Getty from that library, vanished. They never even responded. Our takeaway here was that Getty use bots to find large collections of unique high-res images on sites that aren’t explicitly copyrighted, and just take them, on the odds that they’ll get away with it. We encouraged the client to sue them for damages, but they were so relieved that the problem had gone away that they just wanted to move on. I’d wager this isn’t a unique experience.

Urgo 7y ago

Mods can we get a [2016] in the title?

kstenerud 7y ago

As a business model it makes perverse sense: 1. Use bots to vacuum up as many images as you can online, and claim ownership. 2. Use bots to search for infringement and automatically send claim letters against them. 3. For any pushback, have a team of lawyers and clerks of various grades to deal with situations as they escalate. Push or capitulate after sizing up the opponent. Most people either just want it over, or don't have the means to fight back for any length of time. The money you make from such a scheme would far outweigh the legal costs due to the scale of the automated income. It would only become problematic if someone else started a rival company, at which point they'd need to set up an oligopoly agreement to avoid destroying one another with their bots.

jopsen 7y ago
I suspect you eventually go to jail on fraud charges. Getty can probably argue that they made a mistake when classifying the image. But this argument only works if you have rights to a lot of legitimate works. (Disclaimer: I'm no lawyer)
- kstenerud 7y ago
  It would more likely be fines, especially once you're big enough to pull strings. It wouldn't be too much trouble to add "copyright checker" code to the bots that's good enough to provide a fig leaf for your defense. Automated large-scale systems make mistakes all the time, after all. Pay the fines, do the minimum work necessary to comply with the court order, rinse and repeat, and keep your PR team on standby.
  - jopsen 7y ago
    Fair enough, maybe I should have said that in theory they could go to jail for fraud. In practice, it's unlikely that even a dedicated scam operation gets the attention of the authorities.. it rarely happens, probably because there are more serious crimes to prosecute.
- dmitriid 7y ago
  > I suspect you eventually go to jail on fraud charges You don't. At most you get slapped with a 1.5 million dollar fine. Getty's revenue is ~1 billion dollars. This gets written of as minor expense. In all other cases you team of lawyers gets the court to dismiss the case.

foxx-boxx 7y ago

Clickbait

deleted 7y ago

[deleted]

choonway 7y ago

the only way for all of this to work out (for all parties involved) is if there is another superpower nation with nuclear weapons with laws that punishes these sort of behavior and all the tech talent flows there.

shamaku 7y ago

Extortion The obtaining of property from another induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.

dillonmckay 7y ago

So, in the US, how does one put their IP into the public domain, without dying and waiting many years? I had thought this would be a license, not a waiver.

HeadsUpHigh 7y ago
My understanding is that public domain means no license, no nothing. So anyone can sell a copy of it( claiming copyright like in this case is a different story). A licensed piece is not in the public domain. As the creator you can dictate the terms of use, and you do so with a license which basically allows everyone to use the piece( or for certain use-cases depending on the license). Think of it as a hack: a licensed piece is still copyrighted, and will enter the public domain when the copyright expires( or the sun blows up, whichever comes first).
- dillonmckay 7y ago
  By default, you creating a creative work, you have the copyright.
- JJMcJ 7y ago
  Look at the Unlicense: https://unlicense.org/ https://unlicense.org/ It releases into the public domain, where possible, and has a paragraph that comes as close as possible to the public domain in jurisdictions where that release isn't possible. I think the idea in the referenced case is that a release to the public domain means that the author gives up all interest in the work. Not to really defend Getty Images, which seems to be acting out of line.

dana321 7y ago

So, they took public domain, added a watermark and claimed copyright? Its a case of using the wrong license if they didn't want this to happen. They should have used Creative Commons.

loraa 7y ago

When all else fails... Become a photographer.

ArtDev 7y ago

I hope they make an example of Getty.