You took this picture and shared it. Now pay up!
July 28, 2016 6:53 AM Subscribe
Since 1988, photographer Carol Highsmith has been donating many of her photographs to the Library of Congress for public use. But in December, she got a letter demanding $120 as compensation for copyright infringement... for hosting one of her own pictures on her website.
Now she's suing Getty Images for USD $1 billion.
Many of the images that Highsmith donated to the Library Congress have been digitized. The filing in the U.S. District Court.
Many of the images that Highsmith donated to the Library Congress have been digitized. The filing in the U.S. District Court.
Oh my gosh yes. Yes so much. I hope the Getty execs cry themselves sleepless over this suit. One of the noblest things you can do in this world is donate your hard work to increase the public's access to information and knowledge and to have someone try to profit from someone else's good work is just...it's reprehensible. Thank you for this post.
posted by phunniemee at 7:02 AM on July 28, 2016 [36 favorites]
posted by phunniemee at 7:02 AM on July 28, 2016 [36 favorites]
This makes me so happy, I hope she sues them into oblivion and wins.
posted by Jubey at 7:05 AM on July 28, 2016 [24 favorites]
posted by Jubey at 7:05 AM on July 28, 2016 [24 favorites]
One person in the Ars Technica forum suggested her legal team should ask Getty to screen their remaining photos and prove that they have the right licensing to be distributing them all. That would be amusing. Especially if they were also required to pay out damages to license holder for any other misappropriated photos in the process.
posted by caution live frogs at 7:09 AM on July 28, 2016 [81 favorites]
posted by caution live frogs at 7:09 AM on July 28, 2016 [81 favorites]
So many layers of fuckery in this, but maybe the most forehead-slapping is sending the one person in the world who could conclusively prove they'd stolen the image a bill for the damned thing.
posted by DirtyOldTown at 7:10 AM on July 28, 2016 [29 favorites]
posted by DirtyOldTown at 7:10 AM on July 28, 2016 [29 favorites]
This! This is why copyright is important. Without it, Carol would have no grounds to seek remuneration. There's a lot of talk about how big corporations wield copyright to silence artists, but the real threat of getting rid of it is corporate exploitation of individuals.
posted by grumpybear69 at 7:12 AM on July 28, 2016 [39 favorites]
posted by grumpybear69 at 7:12 AM on July 28, 2016 [39 favorites]
Seriously. It's shit like this that on the one hand erodes the public's perception of copyright protection (big corporation claims copyright on something they don't own) while at the same time demonstrating its utility.
Fuck Getty, though, for a whole, whole lot of reasons.
posted by uncleozzy at 7:18 AM on July 28, 2016 [7 favorites]
Fuck Getty, though, for a whole, whole lot of reasons.
posted by uncleozzy at 7:18 AM on July 28, 2016 [7 favorites]
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.
Gah. There's a lot here to be upset about, but they just can't stop with the galling mendacity.
posted by nubs at 7:22 AM on July 28, 2016 [14 favorites]
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.
Gah. There's a lot here to be upset about, but they just can't stop with the galling mendacity.
posted by nubs at 7:22 AM on July 28, 2016 [14 favorites]
I wouldn't be surprised if the Getty lawyers find some way to finagle themselves out of this situation.
Like claim that the pictures they illegally infringed are human entities and are therefore allowed to make their own decisions. Fuck these guys.
posted by Fizz at 7:26 AM on July 28, 2016
Like claim that the pictures they illegally infringed are human entities and are therefore allowed to make their own decisions. Fuck these guys.
posted by Fizz at 7:26 AM on July 28, 2016
This! This is why copyright is important. Without it, Carol would have no grounds to seek remuneration. There's a lot of talk about how big corporations wield copyright to silence artists, but the real threat of getting rid of it is corporate exploitation of individuals.
Amen. That is part of what makes this story so richly satisfying: she's suing for an inconceivably large sum of money, but she's completely justified: those are the statutory damages as defined in law. Law that scummy middlemen like the RIAA and Getty Images spent millions of dollarswriting lobbying for, thinking they could use it to bully small-time infringers. Never before has a company so badly fucked itself, hoisted entirely by its own petard.
posted by Mayor West at 7:29 AM on July 28, 2016 [79 favorites]
Amen. That is part of what makes this story so richly satisfying: she's suing for an inconceivably large sum of money, but she's completely justified: those are the statutory damages as defined in law. Law that scummy middlemen like the RIAA and Getty Images spent millions of dollars
posted by Mayor West at 7:29 AM on July 28, 2016 [79 favorites]
This is why copyright is important. Without it, Carol would have no grounds to seek remuneration.
If there was no copyright (or a basis of copyright closer to copyleft/Creative Commons), Getty wouldn't have had any basis to demand $120 from Highsmith at all.
posted by skynxnex at 7:30 AM on July 28, 2016 [24 favorites]
If there was no copyright (or a basis of copyright closer to copyleft/Creative Commons), Getty wouldn't have had any basis to demand $120 from Highsmith at all.
posted by skynxnex at 7:30 AM on July 28, 2016 [24 favorites]
Getty is AWFUL, and they keep buying up other image services, and then raising their prices and reducing the rights that come with their licenses, and ugh ugh ugh. I hope she crushes them.
posted by a fiendish thingy at 7:39 AM on July 28, 2016 [2 favorites]
posted by a fiendish thingy at 7:39 AM on July 28, 2016 [2 favorites]
I just ran into this elsewhere (with a little less substance); thanks for the link to the case.
I have zero sympathy for Getty here, but my understanding of title 17 is that they could potentially license the use of something that's in the public domain if their use was "transformative." I think this has been stretched a little in some cases to apply to digitizing a physical print.
Any specialists want to weigh in on whether the suit has legs?
Of course this is their core business so they'll probably want to settle either way . . .
posted by aspersioncast at 7:39 AM on July 28, 2016
I have zero sympathy for Getty here, but my understanding of title 17 is that they could potentially license the use of something that's in the public domain if their use was "transformative." I think this has been stretched a little in some cases to apply to digitizing a physical print.
Any specialists want to weigh in on whether the suit has legs?
Of course this is their core business so they'll probably want to settle either way . . .
posted by aspersioncast at 7:39 AM on July 28, 2016
I wonder how many stock photo sellers have sold public domain ages to Getty. They insist that everyone else has impeccable copyright traceability to prove ownership (or pay up), but it's great someone is calling them out using their own legal strategy.
posted by benzenedream at 7:41 AM on July 28, 2016
posted by benzenedream at 7:41 AM on July 28, 2016
So many layers of fuckery in this, but maybe the most forehead-slapping is sending the one person in the world who could conclusively prove they'd stolen the image a bill for the damned thing.
I am 99% sure that billing her was done by an underpaid human who was just grinding out another task on their to-do list. "Check to see if person you are sending notice to took this picture" is not even on their list.
And I absolutely believe that they have many other stolen images in their database that are either public domain or just taken from the actual artist.
posted by emjaybee at 7:42 AM on July 28, 2016 [3 favorites]
I am 99% sure that billing her was done by an underpaid human who was just grinding out another task on their to-do list. "Check to see if person you are sending notice to took this picture" is not even on their list.
And I absolutely believe that they have many other stolen images in their database that are either public domain or just taken from the actual artist.
posted by emjaybee at 7:42 AM on July 28, 2016 [3 favorites]
She's suing for $1 billion, because suing for "Fuck you" would have been too obvious.
posted by Etrigan at 7:44 AM on July 28, 2016 [44 favorites]
posted by Etrigan at 7:44 AM on July 28, 2016 [44 favorites]
I wonder how many stock photo sellers have sold public domain ages to Getty
Generally speaking, when you license a work to a company like Getty, you assert that you are the sole rightsholder of the work.
posted by uncleozzy at 7:46 AM on July 28, 2016
Generally speaking, when you license a work to a company like Getty, you assert that you are the sole rightsholder of the work.
posted by uncleozzy at 7:46 AM on July 28, 2016
It looks like Getty assumed that the images were fully in the public domain, when in reality they were merely licensed under terms that allowed publication and distribution but required attribution.
A lot of this case hinges on the meaning of "copyright management information". The vast majority of the damages are based on alleged violations of 17 USC 1202(a) and (b), which prohibit falsifying and removing copyright management information, respectively.
The law is not completely settled on what "copyright management information" means. The Third Circuit (which is not where this case was filed) has held that it encompasses the kind of plain-text authorship and licensing information at issue in this case. Murphy v. Millennium Radio Group, 650 F.3d 295 (3d Cir. 2011). An earlier district court case had held that it only applies to "component[s] of an automated copyright protection or management system". IQ Group v. Wiesner, 409 F.Supp.2d 587 (D.NJ 2006). That holding was essentially overruled by Murphy.
So far the Second Circuit, which includes the Southern District of New York, where this case was filed, has not weighed in on the issue. The SDNY itself has, though, and followed Murphy's broad reading of CMI. Bounce Exchange v. Zeus Enterprise, 2015 WL 8579023 (SDNY 2015).
If this case does not settle, Getty will almost certainly end up appealing it to the Second Circuit and argue for a narrow reading of CMI. Based on how the existing cases on this issue have gone, I don't like their chances.
posted by jedicus at 7:48 AM on July 28, 2016 [24 favorites]
A lot of this case hinges on the meaning of "copyright management information". The vast majority of the damages are based on alleged violations of 17 USC 1202(a) and (b), which prohibit falsifying and removing copyright management information, respectively.
The law is not completely settled on what "copyright management information" means. The Third Circuit (which is not where this case was filed) has held that it encompasses the kind of plain-text authorship and licensing information at issue in this case. Murphy v. Millennium Radio Group, 650 F.3d 295 (3d Cir. 2011). An earlier district court case had held that it only applies to "component[s] of an automated copyright protection or management system". IQ Group v. Wiesner, 409 F.Supp.2d 587 (D.NJ 2006). That holding was essentially overruled by Murphy.
So far the Second Circuit, which includes the Southern District of New York, where this case was filed, has not weighed in on the issue. The SDNY itself has, though, and followed Murphy's broad reading of CMI. Bounce Exchange v. Zeus Enterprise, 2015 WL 8579023 (SDNY 2015).
If this case does not settle, Getty will almost certainly end up appealing it to the Second Circuit and argue for a narrow reading of CMI. Based on how the existing cases on this issue have gone, I don't like their chances.
posted by jedicus at 7:48 AM on July 28, 2016 [24 favorites]
Generally speaking, when you license a work to a company like Getty, you assert that you are the sole rightsholder of the work.
If that is the case, then Getty can just pay up the billion dollars, then sue whoever claimed that when they sold Getty the image. Or Getty could do due diligence and not make themselves liable for billions of dollars in the process.
posted by Dysk at 7:50 AM on July 28, 2016 [5 favorites]
If that is the case, then Getty can just pay up the billion dollars, then sue whoever claimed that when they sold Getty the image. Or Getty could do due diligence and not make themselves liable for billions of dollars in the process.
posted by Dysk at 7:50 AM on July 28, 2016 [5 favorites]
It looks like Getty assumed that the images were fully in the public domain, when in reality they were merely licensed under terms that allowed publication and distribution but required attribution.
That doesn't make any sense. Would they be allowed to charge licensing fees for public domain images? You can't license what you don't own. Getty doesn't own public domain images. What am I missing?
posted by If only I had a penguin... at 7:50 AM on July 28, 2016 [15 favorites]
That doesn't make any sense. Would they be allowed to charge licensing fees for public domain images? You can't license what you don't own. Getty doesn't own public domain images. What am I missing?
posted by If only I had a penguin... at 7:50 AM on July 28, 2016 [15 favorites]
jedicus, surely Getty can't charge other people for public domain images? Like, not in the "you're violating our copyright, pay up" sense (though obviously they could sell you files or prints or whatever, just not complain if you duplicated them or used the image gathered from elsewhere without paying them).
posted by Dysk at 7:51 AM on July 28, 2016
posted by Dysk at 7:51 AM on July 28, 2016
those goddamn motherfuckers. I worked on indexing that collection for the current web presence. I hope they learn their lesson from this.
posted by numaner at 7:52 AM on July 28, 2016 [35 favorites]
posted by numaner at 7:52 AM on July 28, 2016 [35 favorites]
That doesn't make any sense. Would they be allowed to charge licensing fees for public domain images? You can't license what you don't own. Getty doesn't own public domain images. What am I missing?
Sure, as long as they didn't make any fraudulent claims in the process (e.g. claiming that the image was copyrighted). There would even be some benefit to the buyer, in that Getty would provide a copy of the photo.
Like, not in the "you're violating our copyright, pay up" sense (though obviously they could sell you files or prints or whatever, just not complain if you duplicated them or used the image gathered from elsewhere without paying them).
Right. But by the same token if the photos were truly in the public domain, then Highsmith wouldn't have a case. (Well, maybe a minor one for the attempted shakedown and the damage to her reputation.)
posted by jedicus at 7:56 AM on July 28, 2016
Sure, as long as they didn't make any fraudulent claims in the process (e.g. claiming that the image was copyrighted). There would even be some benefit to the buyer, in that Getty would provide a copy of the photo.
Like, not in the "you're violating our copyright, pay up" sense (though obviously they could sell you files or prints or whatever, just not complain if you duplicated them or used the image gathered from elsewhere without paying them).
Right. But by the same token if the photos were truly in the public domain, then Highsmith wouldn't have a case. (Well, maybe a minor one for the attempted shakedown and the damage to her reputation.)
posted by jedicus at 7:56 AM on July 28, 2016
(Well, maybe a minor one for the attempted shakedown and the damage to her reputation.)
The attempted shakedown retribution/remuneration would be available to anyone Getty attempted to extort by claiming they couldn't use the images without Getty's approval, wouldn't it? Like, to the point of screaming out for a class action suit?
posted by Dysk at 8:00 AM on July 28, 2016
The attempted shakedown retribution/remuneration would be available to anyone Getty attempted to extort by claiming they couldn't use the images without Getty's approval, wouldn't it? Like, to the point of screaming out for a class action suit?
posted by Dysk at 8:00 AM on July 28, 2016
Selling a copy of the photo is not the same as selling a license to the photo. So thinking the pics are in the public domain wouldn't absolve them here -- they have no basis for selling licenses to the photo.
If the photos had been in the public domain and they were selling supposed licenses (which I would think would also qualify as fraud, like selling a bridge you don't own), wouldn't just about anyone be entitled to sue them?
posted by If only I had a penguin... at 8:01 AM on July 28, 2016 [4 favorites]
If the photos had been in the public domain and they were selling supposed licenses (which I would think would also qualify as fraud, like selling a bridge you don't own), wouldn't just about anyone be entitled to sue them?
posted by If only I had a penguin... at 8:01 AM on July 28, 2016 [4 favorites]
She's suing for $1 billion, because suing for "Fuck you" would have been too obvious
Equally satisfying though. Maybe she can get that added as punitive damages.
posted by Tell Me No Lies at 8:07 AM on July 28, 2016 [2 favorites]
Equally satisfying though. Maybe she can get that added as punitive damages.
posted by Tell Me No Lies at 8:07 AM on July 28, 2016 [2 favorites]
wouldn't just about anyone be entitled to sue them?
I am not a lawyer but I have watched a bunch of law shows on TV. I think that the court system is better off requiring that to have standing to sue, someone had to actually get charged money fraudulently, rather than just claim some theory like being part of the "public" in "public domain". Otherwise, you open the door for all kinds of lunatics who want to sue NASA because Pluto has been made not a planet, etc.
posted by thelonius at 8:09 AM on July 28, 2016
I am not a lawyer but I have watched a bunch of law shows on TV. I think that the court system is better off requiring that to have standing to sue, someone had to actually get charged money fraudulently, rather than just claim some theory like being part of the "public" in "public domain". Otherwise, you open the door for all kinds of lunatics who want to sue NASA because Pluto has been made not a planet, etc.
posted by thelonius at 8:09 AM on July 28, 2016
This is awful, Getty are essentially stealing content away from the public domain as anyone using these images (even if they got it from the Library of Congress) could still be stung with usage fees for the license. I've come across this before at Getty but didn't contemplate the implications.
posted by ebear at 8:09 AM on July 28, 2016 [2 favorites]
posted by ebear at 8:09 AM on July 28, 2016 [2 favorites]
my understanding of title 17 is that they could potentially license the use of something that's in the public domain if their use was "transformative."
This isn't correct. I'm struggling a bit to understand what you mean here. Fair use is a defense to claims of copyright infringement, and transformativeness favors a finding of fair use. But Getty isn't using these images, in the copyright sense. It's just making a false claim of ownership.
The Third Circuit (which is not where this case was filed) has held that it encompasses the kind of plain-text authorship and licensing information at issue in this case. Murphy v. Millennium Radio Group, 650 F.3d 295 (3d Cir. 2011). An earlier district court case had held that it only applies to "component[s] of an automated copyright protection or management system". IQ Group v. Wiesner, 409 F.Supp.2d 587 (D.NJ 2006). That holding was essentially overruled by Murphy.
Yep. It's very hard to find a basis for any kind of "automated" restriction in the statutory language. I haven't checked to see if any other circuits have weighed in on this recently, but I think the Second is likely to follow the Third if it gets to that point.
Sure, as long as they didn't make any fraudulent claims in the process [of licensing] (e.g. claiming that the image was copyrighted)
You can only license something if you have some right to control its use. Selling someone a copy of an image is not the same as licensing it. Many of Walker Evans's images are in the public domain. You could print and sell copies of those images, or even compile them in a book and sell them. But you don't have any legitimate basis for licensing them, that is, purporting to give someone else the power to use them, because the public already has that power. At the very least, any licensing agreement is going to include a representation by the licensor that they actually have the authority to license the image, so it would be a breach of contract.
posted by praemunire at 8:15 AM on July 28, 2016 [21 favorites]
This isn't correct. I'm struggling a bit to understand what you mean here. Fair use is a defense to claims of copyright infringement, and transformativeness favors a finding of fair use. But Getty isn't using these images, in the copyright sense. It's just making a false claim of ownership.
The Third Circuit (which is not where this case was filed) has held that it encompasses the kind of plain-text authorship and licensing information at issue in this case. Murphy v. Millennium Radio Group, 650 F.3d 295 (3d Cir. 2011). An earlier district court case had held that it only applies to "component[s] of an automated copyright protection or management system". IQ Group v. Wiesner, 409 F.Supp.2d 587 (D.NJ 2006). That holding was essentially overruled by Murphy.
Yep. It's very hard to find a basis for any kind of "automated" restriction in the statutory language. I haven't checked to see if any other circuits have weighed in on this recently, but I think the Second is likely to follow the Third if it gets to that point.
Sure, as long as they didn't make any fraudulent claims in the process [of licensing] (e.g. claiming that the image was copyrighted)
You can only license something if you have some right to control its use. Selling someone a copy of an image is not the same as licensing it. Many of Walker Evans's images are in the public domain. You could print and sell copies of those images, or even compile them in a book and sell them. But you don't have any legitimate basis for licensing them, that is, purporting to give someone else the power to use them, because the public already has that power. At the very least, any licensing agreement is going to include a representation by the licensor that they actually have the authority to license the image, so it would be a breach of contract.
posted by praemunire at 8:15 AM on July 28, 2016 [21 favorites]
I am not a lawyer but I have watched a bunch of law shows on TV. I think that the court system is better off requiring that to have standing to sue, someone had to actually get charged money fraudulently, rather than just claim some theory like being part of the "public" in "public domain".
hmm...i guess I wasn't thinking about claiming to be the public in public domain....I was thinking more "this could go to court without a particular plaintiff." as a sort of regulatory violation. Sued by nobody in particular, but sued nonetheless. Like who actually (in theory, not in reality, I realize) sues if a bank doesn't follow banking regulations, like if a bank were to not keep the required cash reserve? It's not any particular bank client or even a class action suit by the bank's clients it's more that some government lawyer takes this to court with no particular plaintiff, right? I know someone who works for the government taking people in the securities industry to court for regulatory violations (like managing mutual funds without a license etc.).
posted by If only I had a penguin... at 8:15 AM on July 28, 2016
hmm...i guess I wasn't thinking about claiming to be the public in public domain....I was thinking more "this could go to court without a particular plaintiff." as a sort of regulatory violation. Sued by nobody in particular, but sued nonetheless. Like who actually (in theory, not in reality, I realize) sues if a bank doesn't follow banking regulations, like if a bank were to not keep the required cash reserve? It's not any particular bank client or even a class action suit by the bank's clients it's more that some government lawyer takes this to court with no particular plaintiff, right? I know someone who works for the government taking people in the securities industry to court for regulatory violations (like managing mutual funds without a license etc.).
posted by If only I had a penguin... at 8:15 AM on July 28, 2016
Btw, Highsmith's images are terrific. I know that is not really relevant to the legal case, but I want to celebrate her outstanding work.
posted by AugustWest at 8:18 AM on July 28, 2016 [15 favorites]
posted by AugustWest at 8:18 AM on July 28, 2016 [15 favorites]
Oh, right, like United States Of America v. Getty Images. That wouldn't make me lose any sleep.
posted by thelonius at 8:18 AM on July 28, 2016 [1 favorite]
posted by thelonius at 8:18 AM on July 28, 2016 [1 favorite]
I'm sure everyone will be shocked when Getty either settles for a cost easily passed on to it's extortion business or wins an appeal or drags out the court case until it is settled...
it's a version of the old "it's illegal for rich and poor alike to sleep under bridges" where instead "both individuals and well funded corporations are availed the opportunity to resolve disputes by engaging in lengthy complicated litigation..." that's the way the system works.
and then, worse case scenario, Getty loses completely declares bankruptcy, and the whole matter is then transferred to a new set of bankruptcy attorneys who also believe thus sort of charade is the only way the world could work.
posted by ennui.bz at 8:22 AM on July 28, 2016 [5 favorites]
it's a version of the old "it's illegal for rich and poor alike to sleep under bridges" where instead "both individuals and well funded corporations are availed the opportunity to resolve disputes by engaging in lengthy complicated litigation..." that's the way the system works.
and then, worse case scenario, Getty loses completely declares bankruptcy, and the whole matter is then transferred to a new set of bankruptcy attorneys who also believe thus sort of charade is the only way the world could work.
posted by ennui.bz at 8:22 AM on July 28, 2016 [5 favorites]
But you don't have any legitimate basis for licensing them, that is, purporting to give someone else the power to use them, because the public already has that power
It's not inherently an act of fraud to sell someone something they already own (otherwise tons of overbroad form contracts would be fraudulent). There still has to be a material misrepresentation, reliance, etc.
At the very least, any licensing agreement is going to include a representation by the licensor that they actually have the authority to license the image, so it would be a breach of contract.
Well, Getty's usual license agreement only represents that Getty "has all necessary rights and authority to enter into and perform this Agreement". One could argue that's different from representing that the work is copyrighted and that Getty owns the copyright or the right to license it to others. In a sense, they do have the 'necessary' rights to sell a (legally meaningless) "license" to a public domain work, in that anyone could do so.
Consider the case in which Getty and the buyer both know the image is in the public domain and no representation is made to the contrary. The buyer just wants a convenient download of the image in high resolution and is willing to pay for it. Getty could probably still use its form license agreement without committing fraud or violating the copyright laws.
In any event, in that case the person with standing to sue would be the individual defrauded purchasers (or a class thereof), not Highsmith.
posted by jedicus at 8:25 AM on July 28, 2016 [1 favorite]
It's not inherently an act of fraud to sell someone something they already own (otherwise tons of overbroad form contracts would be fraudulent). There still has to be a material misrepresentation, reliance, etc.
At the very least, any licensing agreement is going to include a representation by the licensor that they actually have the authority to license the image, so it would be a breach of contract.
Well, Getty's usual license agreement only represents that Getty "has all necessary rights and authority to enter into and perform this Agreement". One could argue that's different from representing that the work is copyrighted and that Getty owns the copyright or the right to license it to others. In a sense, they do have the 'necessary' rights to sell a (legally meaningless) "license" to a public domain work, in that anyone could do so.
Consider the case in which Getty and the buyer both know the image is in the public domain and no representation is made to the contrary. The buyer just wants a convenient download of the image in high resolution and is willing to pay for it. Getty could probably still use its form license agreement without committing fraud or violating the copyright laws.
In any event, in that case the person with standing to sue would be the individual defrauded purchasers (or a class thereof), not Highsmith.
posted by jedicus at 8:25 AM on July 28, 2016 [1 favorite]
Getty are dicks, but the LoC language is also confusing. From the filing: "...the public should be able to reproduce and display her work for free, with proper accreditation given to her and proper reference made to the Library collection." But on the LoC website most of her works are listed as "Rights Advisory: No known restrictions on publication," which is the same language they use for truly public domain works (those whose copyrights pre-date 1923).
It's too bad her generous gift came before Creative Commons existed, in which case she'd have the benefit of more precise legal language to assert how she wanted to authorize reuse. There are CC licenses which exactly match her intent.
(There's no scenario in which Getty could assert that they actually owned the rights to her work, though.)
posted by nev at 8:34 AM on July 28, 2016 [5 favorites]
It's too bad her generous gift came before Creative Commons existed, in which case she'd have the benefit of more precise legal language to assert how she wanted to authorize reuse. There are CC licenses which exactly match her intent.
(There's no scenario in which Getty could assert that they actually owned the rights to her work, though.)
posted by nev at 8:34 AM on July 28, 2016 [5 favorites]
The Getty contributor that the Highsmith images came from ('Buyenlarge') deals primarily or exclusively deals in public domain images, such as this image from the LoC. I suspect Buyenlarge did a mass scape of the LoC.
posted by jedicus at 8:39 AM on July 28, 2016 [5 favorites]
posted by jedicus at 8:39 AM on July 28, 2016 [5 favorites]
So there's absolutely no excuse for Getty trying to fraudulently extort money from Highsmith - under any plausible misunderstanding or mistake, Getty would still not have grounds to demand payment from anyone using the images independently.
posted by Dysk at 8:41 AM on July 28, 2016 [1 favorite]
posted by Dysk at 8:41 AM on July 28, 2016 [1 favorite]
In a sense, they do have the 'necessary' rights to sell a (legally meaningless) "license" to a public domain work, in that anyone could do so.
So like the Star Registry of public domain works.
posted by Nonsteroidal Anti-Inflammatory Drug at 8:42 AM on July 28, 2016 [1 favorite]
So like the Star Registry of public domain works.
posted by Nonsteroidal Anti-Inflammatory Drug at 8:42 AM on July 28, 2016 [1 favorite]
Well, Getty's usual license agreement only represents that Getty "has all necessary rights and authority to enter into and perform this Agreement". One could argue that's different from representing that the work is copyrighted and that Getty owns the copyright or the right to license it to others. In a sense, they do have the 'necessary' rights to sell a (legally meaningless) "license" to a public domain work, in that anyone could do so.
In this case couldn't one argue that the contract is invalid (or whatever the legal term is)? A contract requires consideration provided by both parties. If Getty isn't actually selling you anything then they've provided no consideration. We've said they could legally sell you a copy of the photo, but the contract doesn't seem to mention that, so it's not what's being contracted for, so there's no consideration provided by Getty.
posted by If only I had a penguin... at 8:54 AM on July 28, 2016 [1 favorite]
In this case couldn't one argue that the contract is invalid (or whatever the legal term is)? A contract requires consideration provided by both parties. If Getty isn't actually selling you anything then they've provided no consideration. We've said they could legally sell you a copy of the photo, but the contract doesn't seem to mention that, so it's not what's being contracted for, so there's no consideration provided by Getty.
posted by If only I had a penguin... at 8:54 AM on July 28, 2016 [1 favorite]
As a photographer who used to work for Getty regularly until 2 years ago when I told them to rip up my contract because I caught them on several occasions lying to me about what they were charging the client as to pay me a lesser cut of the rate all I can say is I hope Highsmith wins, Getty is put out of business, the building on Varick raised and the ground salted under it.
Getty has done more damage to image creators than anyone/ thing since the invention of the camera.
posted by photoslob at 8:59 AM on July 28, 2016 [27 favorites]
Getty has done more damage to image creators than anyone/ thing since the invention of the camera.
posted by photoslob at 8:59 AM on July 28, 2016 [27 favorites]
Getty Images grants to Licensee a non-exclusive, non-sublicensable and non-transferable right to use and Reproduce the Licensed Material identified in the Invoice, solely to the extent explicitly stated in this Agreement
Getty Images does not have the necessary power to grant this right. It does not have the authority to grant anyone any right to use and reproduce the material (at least within the reach of U.S. copyright), nor does it have the authority to grant only a limited right to use and reproduce.
Consider the case in which Getty and the buyer both know the image is in the public domain and no representation is made to the contrary. The buyer just wants a convenient download of the image in high resolution and is willing to pay for it. Getty could probably still use its form license agreement without committing fraud or violating the copyright laws.
Highsmith isn't bringing a breach of contract case, but the "licensees" well could. Seriously, breach of contract and fraud are separate causes of action with separate elements. But, as for the copyright laws...
In any event, in that case the person with standing to sue would be the individual defrauded purchasers (or a class thereof), not Highsmith.
Highsmith didn't bring a lawsuit for fraud. She brought it for DCMA violations, for unlawfully altering CMI. See discussion above.
(Additionally, although we don't know this happened, it is a violation of copyright law to falsely represent ownership for purposes of a DMCA takedown notice (see 512f). So anyone who got slapped with a DMCA notice with respect to any of these images and suffered damages as a result would also have a case.)
posted by praemunire at 9:01 AM on July 28, 2016 [5 favorites]
Getty Images does not have the necessary power to grant this right. It does not have the authority to grant anyone any right to use and reproduce the material (at least within the reach of U.S. copyright), nor does it have the authority to grant only a limited right to use and reproduce.
Consider the case in which Getty and the buyer both know the image is in the public domain and no representation is made to the contrary. The buyer just wants a convenient download of the image in high resolution and is willing to pay for it. Getty could probably still use its form license agreement without committing fraud or violating the copyright laws.
Highsmith isn't bringing a breach of contract case, but the "licensees" well could. Seriously, breach of contract and fraud are separate causes of action with separate elements. But, as for the copyright laws...
In any event, in that case the person with standing to sue would be the individual defrauded purchasers (or a class thereof), not Highsmith.
Highsmith didn't bring a lawsuit for fraud. She brought it for DCMA violations, for unlawfully altering CMI. See discussion above.
(Additionally, although we don't know this happened, it is a violation of copyright law to falsely represent ownership for purposes of a DMCA takedown notice (see 512f). So anyone who got slapped with a DMCA notice with respect to any of these images and suffered damages as a result would also have a case.)
posted by praemunire at 9:01 AM on July 28, 2016 [5 favorites]
Can someone explain how digital rights to public domain photos even works? I understand how it works with paintings -- for example, if the Louvre owns the digital rights to the Mona Lisa, then I know I can't copy their photograph of the painting and use it, because they own the rights to that photo of the painting. But I can make a reproduction of the image itself (somehow), and use that. I get that.
But a photo like this one, which is clearly old enough to be public domain, is being marketed by Bettmann/Getty. How else would one obtain a copy? How else can you access it if not through them? I would love a print of that photo for my wall, and don't need to license it for other than home use -- how is paying Getty through the nose the only way to legally do this when it's a public domain image?
posted by Mchelly at 9:21 AM on July 28, 2016
But a photo like this one, which is clearly old enough to be public domain, is being marketed by Bettmann/Getty. How else would one obtain a copy? How else can you access it if not through them? I would love a print of that photo for my wall, and don't need to license it for other than home use -- how is paying Getty through the nose the only way to legally do this when it's a public domain image?
posted by Mchelly at 9:21 AM on July 28, 2016
But a photo like this one, which is clearly old enough to be public domain, is being marketed by Bettmann/Getty. How else would one obtain a copy? How else can you access it if not through them?
If Getty made the scan, Getty owns the copyright in the scan. Same as how the Louvre can own their scan of the Mona Lisa (but not necessarily, photographs taken of it by others).
If you want a copy of the image, you need to make your own copy (which, of course, gets awkward if the original has been destroyed or is being kept in a Getty vault or something).
posted by sparklemotion at 9:33 AM on July 28, 2016
If Getty made the scan, Getty owns the copyright in the scan. Same as how the Louvre can own their scan of the Mona Lisa (but not necessarily, photographs taken of it by others).
If you want a copy of the image, you need to make your own copy (which, of course, gets awkward if the original has been destroyed or is being kept in a Getty vault or something).
posted by sparklemotion at 9:33 AM on July 28, 2016
How else would one obtain a copy?
It's actually questionable whether Getty can copyright its copy of the image. "Slavish copies" of copyrighted works are not entitled to independent copyright of their own. I don't know if any digital-rights company has successfully argued that the cleanup of an old image represents sufficient originality to give rise to copyright. Barring case-law to the contrary, I'd say not.
However, if you were to simply save a copy of the image off the Getty website, you would almost certainly be violating the site's TOS, so they would have a means of coming after you.
Meanwhile, the physical copy of the image is somewhere, at least recently enough to make a digital copy of it. You'd go to whatever archive holds it and get permission to access the original.
posted by praemunire at 9:37 AM on July 28, 2016 [3 favorites]
It's actually questionable whether Getty can copyright its copy of the image. "Slavish copies" of copyrighted works are not entitled to independent copyright of their own. I don't know if any digital-rights company has successfully argued that the cleanup of an old image represents sufficient originality to give rise to copyright. Barring case-law to the contrary, I'd say not.
However, if you were to simply save a copy of the image off the Getty website, you would almost certainly be violating the site's TOS, so they would have a means of coming after you.
Meanwhile, the physical copy of the image is somewhere, at least recently enough to make a digital copy of it. You'd go to whatever archive holds it and get permission to access the original.
posted by praemunire at 9:37 AM on July 28, 2016 [3 favorites]
IANAL but I'm pretty sure Getty is in the clear because they say "No Copywright Intended" on all the photos they distibute.
posted by The Tensor at 9:42 AM on July 28, 2016 [7 favorites]
posted by The Tensor at 9:42 AM on July 28, 2016 [7 favorites]
IANAL but I'm pretty sure Getty is in the clear because they say "No Copywright Intended" on all the photos they distibute.
Wouldn't that just mean they're not selling the copyright?
posted by If only I had a penguin... at 10:04 AM on July 28, 2016
Wouldn't that just mean they're not selling the copyright?
posted by If only I had a penguin... at 10:04 AM on July 28, 2016
Surely they can use their great library of images to help them determine the correct course of action. Maybe they should run with the chickens.
Or maybe they can try feeding each other salads that they clearly don't want to eat.
I don't know what my point is here. I just continue to be amazed that this site exists, and that it's loaded with expensive images the use case for which I cannot even begin to imagine.
posted by 1adam12 at 10:10 AM on July 28, 2016 [2 favorites]
Or maybe they can try feeding each other salads that they clearly don't want to eat.
I don't know what my point is here. I just continue to be amazed that this site exists, and that it's loaded with expensive images the use case for which I cannot even begin to imagine.
posted by 1adam12 at 10:10 AM on July 28, 2016 [2 favorites]
Seriously, breach of contract and fraud are separate causes of action with separate elements.
I'm quite aware of that. In the case in which Getty intentionally misrepresents the copyrighted status of an image in order to sell a license, that could be both fraud (because it's a material misrepresentation, etc) and a breach of contract (because the contract represents otherwise). You are right that in the case that Getty honestly believed that the images were in the public domain, that would be a breach of contract but not fraud.
Highsmith didn't bring a lawsuit for fraud. She brought it for DCMA violations, for unlawfully altering CMI. See discussion above.
I'm quite aware of that as well (see my first comment in this thread). I read the complaint in its entirety before commenting. I'm discussing Getty's (at this point hypothetical) belief that the images were in the public domain and whether a) that would have made their actions legal and b) to the extent it didn't, what the legal ramifications would be.
My point was that if Getty believed the images were in the public domain, then they could possibly be justified in selling a meaningless license, admittedly under a narrow set of circumstances that may or may not exist.
posted by jedicus at 10:11 AM on July 28, 2016 [2 favorites]
I'm quite aware of that. In the case in which Getty intentionally misrepresents the copyrighted status of an image in order to sell a license, that could be both fraud (because it's a material misrepresentation, etc) and a breach of contract (because the contract represents otherwise). You are right that in the case that Getty honestly believed that the images were in the public domain, that would be a breach of contract but not fraud.
Highsmith didn't bring a lawsuit for fraud. She brought it for DCMA violations, for unlawfully altering CMI. See discussion above.
I'm quite aware of that as well (see my first comment in this thread). I read the complaint in its entirety before commenting. I'm discussing Getty's (at this point hypothetical) belief that the images were in the public domain and whether a) that would have made their actions legal and b) to the extent it didn't, what the legal ramifications would be.
My point was that if Getty believed the images were in the public domain, then they could possibly be justified in selling a meaningless license, admittedly under a narrow set of circumstances that may or may not exist.
posted by jedicus at 10:11 AM on July 28, 2016 [2 favorites]
Looks to me like the case is going to be dismissed on the pleadings, because Highsmith no longer holds copyrights in the images. (At the key point in the complaint where her ownership of the copyrights would be alleged, her attorneys instead reference the "intent" of the "gift" she made to the Library of Congress.) You can't sue to enforce someone else's copyrights, and no one can sue to enforce copyrights in a public domain image. She can't sue on the license being offered being fraudulent because she never actually bought one.
posted by MattD at 10:12 AM on July 28, 2016
posted by MattD at 10:12 AM on July 28, 2016
if Getty believed the images were in the public domain, then they could possibly be justified in selling a meaningless license, admittedly under a narrow set of circumstances that may or may not exist
I'm not understanding you. If you recognize that "in the case that Getty honestly believed that the images were in the public domain, that would be a breach of contract but not fraud," why do you say this? I mean, if your position is just "in a case where Getty reasonably believed the image to be in the public domain, and where they made no reps in the contract as to the copyright status of the image or their authority to license it, and also disclaimed standard commercial warranties, and there was some other consideration [like the indemnification provision in the actual agreement], then there might not be a cause of action against Getty," then...sure, I guess. I really don't think that is this case. Nor is it a case ever likely to arise in this context, because the most vaguely capable licensee will negotiate for assurances that it is actually getting something in return for its money.
You can't sue to enforce someone else's copyrights, and no one can sue to enforce copyrights in a public domain image.
She's not suing to enforce a copyright, though it's definitely an interesting question. (P.S. The deed of gift is ex. B to the complaint, you can pull it off PACER. I don't have anywhere I can easily put it up, or I would, because the terms are obviously relevant.)
posted by praemunire at 10:40 AM on July 28, 2016 [1 favorite]
I'm not understanding you. If you recognize that "in the case that Getty honestly believed that the images were in the public domain, that would be a breach of contract but not fraud," why do you say this? I mean, if your position is just "in a case where Getty reasonably believed the image to be in the public domain, and where they made no reps in the contract as to the copyright status of the image or their authority to license it, and also disclaimed standard commercial warranties, and there was some other consideration [like the indemnification provision in the actual agreement], then there might not be a cause of action against Getty," then...sure, I guess. I really don't think that is this case. Nor is it a case ever likely to arise in this context, because the most vaguely capable licensee will negotiate for assurances that it is actually getting something in return for its money.
You can't sue to enforce someone else's copyrights, and no one can sue to enforce copyrights in a public domain image.
She's not suing to enforce a copyright, though it's definitely an interesting question. (P.S. The deed of gift is ex. B to the complaint, you can pull it off PACER. I don't have anywhere I can easily put it up, or I would, because the terms are obviously relevant.)
posted by praemunire at 10:40 AM on July 28, 2016 [1 favorite]
I wish there was a more general anti-profiteering law that could be used against corporates who exist by amassing IP created by non-employees. From scientific publishing through to music publishing and now this, the scale and sheer banal predictability of how these organisations create and abuse bodies of creative work is awesome. They have the lawyers, the lobbyists and the muscle to create the environment where they can scare and coerce producers and consumers alike into inequitable deals, while adding little of value in the process.
Indeed, in these digital days, they are practically otiose: curation, distribution and even marketing are no longer necessarily or even preferably best served by large specialist organisations. They exist due to inertia and their own mass, not because they are needed.
posted by Devonian at 11:06 AM on July 28, 2016 [1 favorite]
Indeed, in these digital days, they are practically otiose: curation, distribution and even marketing are no longer necessarily or even preferably best served by large specialist organisations. They exist due to inertia and their own mass, not because they are needed.
posted by Devonian at 11:06 AM on July 28, 2016 [1 favorite]
Looking at the Getty standard photo licensing agreement again, it also contains this statement: "Any use of Licensed Material in a manner not expressly authorized by this Agreement constitutes copyright infringement, entitling Getty Images to exercise all rights and remedies available to it under copyright laws around the world." That's not in the reps & warrants section, but, with scienter, I think many courts would be inclined to see that as a misrepresentation (or possibly the basis for leveraging a fraudulent omission claim?).
posted by praemunire at 11:25 AM on July 28, 2016 [2 favorites]
posted by praemunire at 11:25 AM on July 28, 2016 [2 favorites]
This is what suing is for.
posted by aniola at 11:26 AM on July 28, 2016 [3 favorites]
posted by aniola at 11:26 AM on July 28, 2016 [3 favorites]
Inspiring move by Highsmith, I truly hope she succeeds in this suit.
posted by interrupt at 1:27 PM on July 28, 2016
posted by interrupt at 1:27 PM on July 28, 2016
The instrument of gift confirms my view. No standing whatever to sue. She gave her copyright away with a request that the LOC obtain credits. Completely non-binding on anyone. Getty should move to sanction her lawyers, it's that obvious.
posted by MattD at 3:38 PM on July 28, 2016
posted by MattD at 3:38 PM on July 28, 2016
Libraries such as Getty make heavy use of image recognition services such as TinEye. It should be possible to run all of LOC's photos through the matcher to pick out copies.
I see that Alamy still has a few of these photos up for sale (with all credit scrubbed, which is allowable for public domain: Abandoned Gas Station In Selma, Alabama Stock Photo, Royalty Free Image: 61239398 - Alamy, Derelict And Abandoned Row Houses In Baltimore, Maryland Stock Photo, Royalty Free Image: 61239381 - Alamy) but I can't find any on Getty (see, for the next few hours at least: 17 results - TinEye).
As they say in my home town: Getty Fuck.
posted by scruss at 3:43 PM on July 28, 2016
I see that Alamy still has a few of these photos up for sale (with all credit scrubbed, which is allowable for public domain: Abandoned Gas Station In Selma, Alabama Stock Photo, Royalty Free Image: 61239398 - Alamy, Derelict And Abandoned Row Houses In Baltimore, Maryland Stock Photo, Royalty Free Image: 61239381 - Alamy) but I can't find any on Getty (see, for the next few hours at least: 17 results - TinEye).
As they say in my home town: Getty Fuck.
posted by scruss at 3:43 PM on July 28, 2016
→ She can't sue on the license being offered being fraudulent because she never actually bought one.
But if J. Random Getty Licensee found out they'd been fraudulently charged, wouldn't they have standing to sue?
(I see that Bridgeman are at it too: Saguaro Cactus near Tucson, Arizona 2008)
posted by scruss at 3:53 PM on July 28, 2016
But if J. Random Getty Licensee found out they'd been fraudulently charged, wouldn't they have standing to sue?
(I see that Bridgeman are at it too: Saguaro Cactus near Tucson, Arizona 2008)
posted by scruss at 3:53 PM on July 28, 2016
The instrument of gift confirms my view. No standing whatever to sue.
So... could the Library of Congress sue, as the copyright holders?
posted by Artful Codger at 4:23 PM on July 28, 2016
So... could the Library of Congress sue, as the copyright holders?
posted by Artful Codger at 4:23 PM on July 28, 2016
How else can you access it if not through them? I would love a print of that photo for my wall, and don't need to license it for other than home use -- how is paying Getty through the nose the only way to legally do this when it's a public domain image?
The same way that you buy book of Shakespeare's works from a publisher - you're welcome to make your own copy, but if someone else does the work of creating that copy in a format that's useful to you, they can charge you for it. Nobody is obligated to provide you the content just because it's in the public domain. (If anyone knows where I can find a copy of the 1922 film Infidel starring Boris Karloff, I'd love to know about it!)
They cannot, however, assert that you aren't allowed to copy it again, or resell it, or use it for commercial or political purposes. If the content is in the public domain, they can't restrict the use of it - and that's where Getty has broken the law.
In addition, these particular photos aren't exactly in the public domain, and copyright law is a enough of a clusterfuck before we get into limited releases of rights. This is definitely a situation where the team with the better lawyers will win; case law is all over the place and only people who love copyright law have the interest level to sort it out. Almost everyone else picks their favorite buzzwords/catchphrases from one side or the other and decides that the other people are breaking the law--and that includes most judges.
posted by ErisLordFreedom at 12:14 AM on July 29, 2016 [2 favorites]
The same way that you buy book of Shakespeare's works from a publisher - you're welcome to make your own copy, but if someone else does the work of creating that copy in a format that's useful to you, they can charge you for it. Nobody is obligated to provide you the content just because it's in the public domain. (If anyone knows where I can find a copy of the 1922 film Infidel starring Boris Karloff, I'd love to know about it!)
They cannot, however, assert that you aren't allowed to copy it again, or resell it, or use it for commercial or political purposes. If the content is in the public domain, they can't restrict the use of it - and that's where Getty has broken the law.
In addition, these particular photos aren't exactly in the public domain, and copyright law is a enough of a clusterfuck before we get into limited releases of rights. This is definitely a situation where the team with the better lawyers will win; case law is all over the place and only people who love copyright law have the interest level to sort it out. Almost everyone else picks their favorite buzzwords/catchphrases from one side or the other and decides that the other people are breaking the law--and that includes most judges.
posted by ErisLordFreedom at 12:14 AM on July 29, 2016 [2 favorites]
It's not clear to me that it's legally possible to actually put anything in the public domain before its copyright period naturally expires, but that certainly seems to be what she was trying to do.
It used to be easy to put something in the public domain - just don't put a © Name Year notice on it. Without the requirement for that, it gets much harder, and it's not even clear if a CC license 0 - the public domain one - is actually legally binding. (Unclear whether, for example, heirs could remove that license in case of death of the creator.)
(I am a copyright minimalist who abhors the combination of no-notice-required and the Life+X approach. I want all copyrights to be reverted to those that were in place at the time of publication, with a 5-year renewal grace period for things that would've been up for renewal between the Mickey Mouse Extension Act and now. Everything published in the US before ~1964 belongs in the public domain.)
if you put something in the public domain, the public can do things with it that you don't approve of, including filing the serial number off it and trying to sell it back to you.
This is true, but Getty wasn't mentioning that the works were public domain (or close enough); they were insisting on licensing rights instead of selling copies - claiming the ability to set limits on how the copies would be used, and claiming the right to sue if they were used outside of those limits. Anyone could've sued Getty for extortion for making threats ("we'll sue!") for trying to get money for those pictures - but only the original creator of the pics knew that Getty had absolutely no exclusive rights to them.
posted by ErisLordFreedom at 8:15 AM on July 29, 2016
It used to be easy to put something in the public domain - just don't put a © Name Year notice on it. Without the requirement for that, it gets much harder, and it's not even clear if a CC license 0 - the public domain one - is actually legally binding. (Unclear whether, for example, heirs could remove that license in case of death of the creator.)
(I am a copyright minimalist who abhors the combination of no-notice-required and the Life+X approach. I want all copyrights to be reverted to those that were in place at the time of publication, with a 5-year renewal grace period for things that would've been up for renewal between the Mickey Mouse Extension Act and now. Everything published in the US before ~1964 belongs in the public domain.)
if you put something in the public domain, the public can do things with it that you don't approve of, including filing the serial number off it and trying to sell it back to you.
This is true, but Getty wasn't mentioning that the works were public domain (or close enough); they were insisting on licensing rights instead of selling copies - claiming the ability to set limits on how the copies would be used, and claiming the right to sue if they were used outside of those limits. Anyone could've sued Getty for extortion for making threats ("we'll sue!") for trying to get money for those pictures - but only the original creator of the pics knew that Getty had absolutely no exclusive rights to them.
posted by ErisLordFreedom at 8:15 AM on July 29, 2016
Getty Images sued again over alleged misuse of over 47,000 photos
posted by 1970s Antihero at 10:51 AM on August 3, 2016
posted by 1970s Antihero at 10:51 AM on August 3, 2016
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