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?