Photographer sues Getty for One Billion Dollars for Copyright Infringement

[jcdeboever]

I'm working hard at getting my images stolen.

 

[limr]

But let's think of it this way. Say I have a customer who needs a specific image for an advertisement. It's pretty common practice to look for images in the public domain for this, and often public domain images do not require citation to use. I check the citation requirements for the image, and confirm this is the case.

So, I incorporate the image into the advert and transfer the license to the client.

How is this any different?

Think of it this way: Your client is paying you for your work on the advert, not for the image or a license for the image. You shouldn't be paying for the image, either. But then Getty comes after you or your client - or both - and demands that you pay them for using the image that is actually in the public domain.

There were people - including the photographer herself - who were using images that they should NOT be paying for and yet Getty was still demanding payment for "copyright infringement." They also slapped on watermarks on her images to give the impression that Getty owned them. And that is clearly fraudulently presenting Getty as the sole copyright owner.

But, if the photographer transferred the images into the public domain I don't think she has any claim to them - she owns them, but so do I - and so does Getty. And what Getty does with those images might be outside of her control.

But IDK. I too am not an attorney. It's a really, really complicated case.

Her lawsuit claims that Getty's profits would have been hers had she not donated them, and that her donation does not give the agency - or anyone else - the right to profit from them as a copyright owner. Sure, people can profit from work that includes her public domain images (such as your theoretical advert work for a client that includes her image), but they can't claim copyright ownership and claim infringement damages as Getty has been doing.

As for the amount, you're looking at 17 U.S. Code 504 (c) (1)?

"Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work."

So $30,000 for EACH work, but she's claiming that Getty infringed on 18,755 works. And they're actually using the sum of $25,000, not $30,000. So (25 x 18,755) x 3 (trebled because of prior infringement.) This the billion in statutory damages.

My guess is that she is asking for the maximum to make a statement, that the lawsuit is really much more of a symbolic flipping of the bird at Getty than it is about the actual money. The judge can reduce the actual damages awarded if deemed necessary. And my suspicion is that if she wins, she'll be donating the money.

The transfer of ownership (including donations into public domain) I believe would be explained under Chapter 2, but I have to go get a haircut now so I'll read it more carefully later

 

[annamaria]

I hope she wins!


Sent from my iPad using Tapatalk

 

[Gary A.]

(all that said, what Getty is doing here is definitely dishonest. I'm just not sure it's illegal)

There's like two levels of law, eh. There's the really bad stuff, ya? And then there's the stuff that people can sue other people for.

Yes there are ... Criminal and Civil ... But I suspect that potentially this is the tip of the iceberg of a class action. What Getty has done to Highsmith, they most likely have also done with other photogs and other images.

 

[unpopular]

Think of it this way: Your client is paying you for your work on the advert, not for the image or a license for the image. You shouldn't be paying for the image, either. But then Getty comes after you or your client - or both - and demands that you pay them for using the image that is actually in the public domain.

I am NOT saying what they were doing was honest. It wasn't. That needs to be absolutely clear.

The question is if it is illegal.

There were people - including the photographer herself - who were using images that they should NOT be paying for and yet Getty was still demanding payment for "copyright infringement."

So then Getty is demanding payment from people who are currently using images in the public domain and obtained from other sources than Getty?

They also slapped on watermarks on her images to give the impression that Getty owned them. And that is clearly fraudulently presenting Getty as the sole copyright owner.

There is certainly that impression, but again that more misleads the customer. The other issue is of who is the copyright owner - I can't sue for images that were stolen from you, if I took an image in teh public domain and claimed that I "owned it" you can't sue me; maybe teh government could as a collective representation of the The People, but you can't. So why should the photographer make a claim that, according to law, are owned by the public?

Then there's the issue of if they're copyright at all. And I'm super unsure about that. I'm not sure if images in the "public domain" aren't copyright, or if the copyright is owned by the public - or even if it much matters.

Her lawsuit claims that Getty's profits would have been hers had she not donated them, and that her donation does not give the agency - or anyone else - the right to profit from them as a copyright owner.

But *is she* a copyright owner? I don't think there is such a thing as "partial ownership of public domain property". This seems kind of weird to me.

Sure, people can profit from work that includes her public domain images (such as your theoretical advert work for a client that includes her image), but they can't claim copyright ownership and claim infringement damages as Getty has been doing.

And that's what is unclear. Has Getty claimed the copyright or implied the copyright? If they stuck a big copyright notice under it that says "Copyright 2016, Getty Images", then that's pretty explicit. Simply placing your watermark on it is more implied, and could be argued that it was placed there to prevent people from downloading it from their aggregate without paying for the service - not the image itself.

I mean, yeah. We all know what Getty was actually doing. But that's beside the point.

So $30,000 for EACH work, but she's claiming that Getty infringed on 18,755 works. And they're actually using the sum of $25,000, not $30,000. So (25 x 18,755) x 3 (trebled because of prior infringement.) This the billion in statutory damages.

Yes. I misread that. But no. they would never award this, past infringement or not.

The transfer of ownership (including donations into public domain) I believe would be explained under Chapter 2, but I have to go get a haircut now so I'll read it more carefully later

Yep. there are two parts to this. The damages and the fair use.

 

[unpopular]

I think that the 'value added' that you created by incorporating the image into a greater entity is different than simply demanding a fee for something which Getty did not add any additional value.

That's kind of a test for appropriations, and if it were to come up then Getty would claim that the added value is that it was included in their search results along side hundreds of other options.

 

[limr]

So then Getty is demanding payment from people who are currently using images in the public domain and obtained from other sources than Getty?

Yup. Remember that she became aware of it when they sent HER a letter accusing her of copyright infringement for displaying her OWN photo on her OWN website. Presumably, she had her own copy and didn't need to get it from Getty If they are demanding damages for copyright infringement, that clearly implies that they are claiming to be the copyright holders.

There is certainly that impression, but again that more misleads the customer. The other issue is of who is the copyright owner - I can't sue for images that were stolen from you, if I took an image in teh public domain and claimed that I "owned it" you can't sue me; maybe teh government could as a collective representation of the The People, but you can't. So why should the photographer make a claim that, according to law, are owned by the public?

Then there's the issue of if they're copyright at all. And I'm super unsure about that. I'm not sure if images in the "public domain" aren't copyright, or if the copyright is owned by the public - or even if it much matters.
...
But *is she* a copyright owner? I don't think there is such a thing as "partial ownership of public domain property". This seems kind of weird to me.

According to this other article (Photographer Suing Getty Images for $1 Billion) about the lawsuit, Highsmith donated the images with no restrictions on usage but never gave up her copyright.

"The photographer’s photos are listed on the library’s website as being in the public domain with “no known restrictions on publication.”

However, Highsmith says she never abandoned her photo copyrights, and says she found out about Getty Images charging for her photos when she was sent a letter from Getty that demanded she pay for her own photo that was being displayed on her own website."

There's also a copy of the official complaint, which should cite the sections of Title 17 that they are suing under and will give the facts they are stipulating.

 

[pixmedic]

 

[limr]

Ah, and here's a bit more of the missing information on yet another site: Photographer suing Getty Images for $1 billion after $120 demand on photo sparks copyright dispute

"Highsmith says she never abandoned her copyrights to the images, PDN reports, and that the Library of Congress “had agreed to notify users of the images that she is the author, and that users must credit her.” But her suit alleges that Getty distributed her images without her permission and failed to give her proper credit."

The wording of the letter she got does seem to at least strongly imply that they are claiming copyright ownership:

"Torrent Freak reports that in December, the This is America! Foundation, a non-profit set up by Highsmith, received a letter from License Compliance Services (LCS) on behalf of Getty-affiliated Alamy:

'We have seen that an image or image(s) represented by Alamy has been used for online use by your company. According to Alamy’s records your company doesn’t have a valid license for use of the image(s). Although this infringement might have been unintentional, use of an image without a valid license is considered copyright infringement in violation of the Copyright Act, Title 17, United States Code. This copyright law entitles Alamy to seek compensation for any license infringement.'"​

 

[limr]

Ooooh, interesting! Note on the complaint provided on the PetaPixel site that a jury trial is demanded. Not sure how binding that is, but it's interesting for sure. She doesn't want it left solely in the hands of a judge.

 

[unpopular]

limr. excellent work looking into this!

 

[limr]

limr. excellent work looking into this!

I do loooove me some research! Plus, and I hate to brag, but I DID get an A in my "Intellectual Property Law for Paralegals" course

 

[astroNikon]

I'm working hard at getting my images stolen.

I have a copy of your images.
Do you want to buy them from me as no one else is interested ?
LOL

 

[astroNikon]

I am NOT saying what they were doing was honest. It wasn't. That needs to be absolutely clear.

The question is if it is illegal.

It seems as though they have been sued (and lost) from doing this in the past.
So there's precedence on findings and awards.

 

[unpopular]

limr. excellent work looking into this!

I do loooove me some research! Plus, and I hate to brag, but I DID get an A in my "Intellectual Property Law for Paralegals" course

LOL - my wife actually has a degree in paralegal studies. But refuses to help with any IP research because it's so complicated. Plus she doesn't have a current password for West or Lexisnexus.