Getty responds to $1 Billion lawsuit: If you put your photos in public domain, don’t come whining to us

September 11, 2016 by Udi Tirosh 26 Comments

OK, those are not the exact words of Getty, but this is what their response feels like. As you may recall we reported this 1 Billion dollars lawsuit back in July. If you want the background, Getty sent an infringement notice to one Carol M. Highsmith. Here is the funny thing. Carol M. Highsmith was the photographer who took the photo in the first place.

In response, Carol sued Getty for 1 billion dollars for “gross misuse” of 18,755 of her photographs, she claims that Getty “falsely and fraudulently holding themselves out as the exclusive copyright owner” (The amount comes from $25K per image in statutory damages times three).

Now it’s Getty’s time to respond (and they did file a response on September 6th) and here is what they are saying:

Basically, they are telling the court that the lawsuit should be dismissed. Why you ask? Well Getty claims that they did nothing illegal.

Getty is claiming that the photos are in the public domain (as you recall, Carol donated her images to the Library of Congress), and as such, Getty has the right to use them. In fact, Carol can not invoke Copyright claims as she those were given by her to the library of congress.

But Getty goes on saying that the fact that a work is under “public domain” still allows it to be sold and showing some examples of other “public domain” IP being sold: “Public domain works are routinely commercialized – e.g., publishers charge money for their copies of Dickens novels and Shakespeare plays, etc”

Now, its is probably for that reason that Carol did not sue for copyright infringement, instead she is suing under the DMCA (Digital Millennium Copyright Act) which states that it is illegal to remove, modify or falsify copyright management information. And Getty are saying they did not falsify anything. But! they are also saying that the DMCA provisions make it illegal to falsify copyright information “with intent to induce, enable, facilitate, or conceal infringement”—or with the knowledge that infringement would result. But public domain images are not subject to copyright and therefore cannot be infringed. So actually, the entire basis of the claim is dropped.

Getty also asked to dismiss a few other claims with various legalities, but this is their main argument.

What do you think? Is getty right in this case or is Carol?

[via pdnpulse]

About Udi Tirosh

Udi Tirosh is the Founder and Editor in Chief of DIYPhotography, he is also a photographer, a relentless entrepreneur, a prolific inventor and a dad, not necessarily in that order

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Burt Johnson

Getty might have been able to pull off their argument if they had not sent an infringement notice to the photographer. I don’t see any way they can say that public domain images cannot be infringed on, and then turn around and issue infringement notices themselves.
- Arcmor
  
  Nailed it.
Renato Murakami

If Highsmith’s claim is that Getty falsely impersonated as the copyright owner, then she’s right on the case, if she has all the material proof to support it, which I bet she does. All Getty is trying to do is redirect and confuse people on what the lawsuit is really about.

Her angle came from the right direction, and her lawyer probably knows what he/she’s doing… it’s left for the judge to do what is right.

The concept of appropriation of copyright on public domain works already even has a term to it, called “Copyfraud”, which is exactly that Getty commited there:
https://en.wikipedia.org/wiki/Copyfraud

To better understand Carol’s angle here perhaps it’s better to forget that she is the original photographer in the first place, even though it sounds very relevant to the case. I mean, for anyone reading about it, it really is extremely relevant to the story and Getty should be ashamed about it certainly, but for the specific lawsuit, the angle is a bit different.
This is more like the public/people versus Getty.

I’m not a lawyer so I dunno, but perhaps Carol being the photographer has even more legal weight I’m overlooking. But if not, Getty is right in saying that once her works became public domain, they are not specifically hers anymore. But that do not mean the lawsuit has no grounds… quite the opposite.

The problem now is making the judge and jury accept the case and apply heavy penalties. There are some exemplary cases on the wikipedia entry on Copyfraud, but as there is nothing specifically on copyright law that determines punishment for impersonation of copyright ownership on public domain works, there’s still room for Getty either being able to dismiss this, or penalties being insignificant.

I do hope that the billion lawsuit goes through though. Copyfraud is a huge problem and it goes in the same line of bogus DMCA claims and copyright trolling. If we expect some changes to be made on this horrible side of copyright law, this is a good point to start doing something about it.

But most importantly, f*ck Getty.
- TheInconvenientRuth
  
  I’m not very familiar with US copyright law, but I’m following this with interest and loads of popcorn. The one thing that does spring to mind is that with a potential $1 billion fee hanging over their head, Getty is going to fight this as hard as they can even if they know they’re wrong… Under US law, can you make an offer of settlement without admitting wrongdoing?
  - ikillflesh
    
    Yes
Logan Laloo

Need to run a spell check or face your editor review these articles. Mistakes look unprofessional
Logan Laloo

Need to run a spell check or have your editor review these articles. Mistakes look unprofessional
Dirk Beichert

Dang.
gtvone

“Getty is calming” …I don’t reckon! lol
- udi tirosh
  
  //fixes post
  //goes to get more coffee
  - gtvone
    
    Hah I preferred it how you had it 😀 *makes Udi another coffee*
    - udi tirosh
      
      yes please.
Todd Klassy

So Getty is aligning itself with Richard Prince? Getty Images is the biggest snake in the world of photography.
DBund

The problem isn’t this photo. In this case the photographer knew that Getty did not have the right to assert copyright on the image. The problem is the millions of dollars Getty has charged for the use of a photo in which they similarly had no right to assert copyright, but the person being charged had no way of knowing. They have clearly engaged in systemic fraud and have been enriched by millions of dollars. Seems like a perfect case for a class action suit, or even a criminal investigation for fraud.
- reservoirdan
  
  This isn’t quite right. There is nothing illegal about Getty charging customers for public domain images. The legal issue is they falsely asserted copyright. The people who paid Getty to use the images got what they paid for fair and square. I can license public domain photo to anyone anywhere anytime. If you want to pay me for one I’ll gladly take your money. Nothing illegal about it. Is it morally corrupt? Maybe. Probably. But that isn’t the point of the lawsuit.
  - pincherio
    
    She was posting pictures she took and Getty was stopping her from using her pictures by claiming that they owned the copyright on those pictures, and you see nothing wrong with that?
    
    It’s not like she sold these pictures to Getty. And it’s not like she got those pictures from Getty’s library. She was using her own pictures!!!
    
    The law doesn’t make it illegal for Getty to make profit out of something taken from the public domain but it does prohibit them from claiming that they own the copyright on it. I can publish copies of the work of Shakespeare but I can’t go around preventing other people from doing the same. That’s the meat of this case. Copyfraud. Getty is fraudulently presenting themselves as the owners of the original copyright when in truth and in fact, it was taken from the public domain and available for anyone to use. Getty can sell the image but they shouldn’t go around preventing other people from using pictures they themselves just picked out of the public domain.
Rob Hall

It’s not the fact that people put their images into the public domain, it’s that Getty has been claiming copyright for those images.
- Michael Lombardi
  
  My thoughts exactly. And I’m completely a layperson here, but she seems to not be mad they are charging for her work rather upset they are claiming they should be paid for every use of the image.
dracphelan

If Getty was not sending DMCA take down notices to people who use those images, I would say they are right. But, when you consider that what kicked this off was Getty’s agent sending such a notice to the photographer, Getty is in the wrong and needs to pay.
Michael Dennis

Just goes to show Copyrights don’t mean squat.
Tom Robson

For those saying she should be protected under copyright. That would be true but she signed away those rights to the library of Congress. See image and linked article. https://www.diyphotography.net/getty-asks-photographer-pay-photo-photographer-responds-1-billion-lawsuit/
Sean Walsh

Wait, so Getty is charging people for images in the public domain? Their thirst for the all mighty dollar shows no boundaries.
Mark Johnston

Never has there been a wretched hive of elitist corporatists more deserving of a billion dollar demand for payment than this one.
suruha

Every time I see where Getty has assumed the rights of a photographer or entire photo site, I just stay away from it. I’m surprised they haven’t figured a way to collect for the use of their name in these comments and the post.
GT

So, if these photos are in the public domain, and they are, as stated by Getty themselves in the lawsuit, and they clearly don’t own the copyright to said photos, how can they charge fees to use them?… I mean, they can certainly ask for payment, but surely nobody is obligated to pay it are they?!
Frank Nazario

I wonder what a copyright lawyer has to say…it would be an interesting topic to hear…