$1 Billion Getty Images Public Domain Photograph Dispute is Over (torrentfreak.com)

Earlier this year, photographer Carol Highsmith received a $120 settlement demand from Getty Images after she used one of her own public domain images on her website (which is she had donated to the Library of Congress and made available to the public to reproduce and display for free). Highsmith responded with a $1bn lawsuit but after a few short months, as TorrentFreak reports, the case is all over, with neither side a clear winner. From the report: To begin, on October 28, US District Court Judge Jed S. Rakoff dismissed each of Carol Highsmith's federal copyright claims. "Defendants Getty Images (US), Inc., License Compliance Services, Inc., Alamy, including that Inc., and Alamy Ltd. collectively moved to dismiss all claims of plaintiffs Carol Highsmith and This is America!, Inc. under the Digital Millenium Copyright Act,... the Lanham Act,... New York General Business Law,... and New York common law of unfair competition," the Judge wrote. "Upon consideration, the Court grants defendants' motions,â he added. With the federal claims gone, three state law claims were including that Getty charged licensing fees for images when it shouldn't have and collected settlements from alleged infringers when it had no right. However, these claims have now also been dismissed, along with the rest of the case. "It is hereby stipulated and agreed, by and among the parties, that this action shall be dismissed with prejudice pursuant to Rule 41(a)(l)(A)(ii) of the Federal Rules of Civil Procedure, each party to bear its own costs and fees," the Judge wrote in his dismissal. Since the case was dismissed with prejudice, it is done and cannot be brought back to court.

Comments

Wrong person sued

[Anonymous Coward]

Conclusion of confusing article:
The original photographer, as she released them to the public domain, had no basis for any claims for activity around them afterwards. Rather, she was free to use those photos because they were, indeed, public domain.

Perhaps a class action lawsuit is required by all of those who've paid for a "valid license" when no valid license was required, and Getty Images was no more than owner than anyone else.

Re:Wrong person sued

[msauve]

She should have ignored their demand and if they then started legal action, countersued for malicious/abusive prosecution.

Re:Wrong person sued

[ShanghaiBill]

... countersued for malicious/abusive prosecution.

That would cost her way way way more than she would have a prayer of a chance of collecting. She could save time by just stuffing her life savings into the garbage disposal. The end result would be the same.

Re:Wrong person sued

[ShanghaiBill]

Perhaps a class action lawsuit is required by all of those who've paid for a "valid license" when no valid license was required

They would likely lose. It is not illegal to sell licenses to public domain works, and it is not illegal to claim copyright. Go to Amazon, and type in the name of a public domain work, like say "The Adventures of Huckleberry Finn", then click on "Look Inside", and then click on "copyright". What do you see?

Re:Wrong person sued

[mrclevesque]

Sad but true

Re:Wrong person sued

[msauve]

Because a single suit would be more expensive than multiple federal and state ones? Or because winning in a malicious prosecution suit recovers legal costs, while a claim for damages (usually) results in only recovery of actual damages?

Re:Wrong person sued

[ShanghaiBill]

Or because winning in a malicious prosecution suit recovers legal costs, while a claim for damages (usually) results in only recovery of actual damages

She would be very unlikely to prevail in a malicious prosecution lawsuit. Otherwise she would have won the current case. She would lose the case, win nothing, and still be stuck with paying her own legal expenses. It is even possible that she could be ordered to pay Getty's expenses, if Getty's lawyers are good and thus know about Rule 68.

Re:Wrong person sued

[msauve]

"She would be very unlikely to prevail in a malicious prosecution lawsuit. Otherwise she would have won the current case"

Legal fail. Two completely differenent issue, legally.

"She would lose the case, win nothing, and still be stuck with paying her own legal expenses."

And the current situation is different in exactly what way?

Re:Wrong person sued

[DutchUncle]

Interesting problem. As the original photographer *and* releaser-of-rights, one would think that she had the BEST claim that they were RELEASED. Or does one have to say that she would be the best WITNESS that they were released, on someone else's behalf?

Re:Wrong person sued

[Mattcelt]

If they corrected spelling errors, they can only claim copyright on the corrections, if even those. (Spelling corrections might be considered formatting, in which case they are not original enough to be considered for copyright.)

"which is she had donated to the LoC"

[K. S. Kyosuke]

Yes, she had donated which "is"? Ugh...

Not surprised

[thundercattt]

This keeps happening to a buddy of mine on teh Facebook. He puts up videos of him doing acoustic songs he wrote and created. Then a music recording company keeps reporting him for infringement. He's been banned a few times. More big companies bullying the little guy.

Re:Not surprised

[Anonymous Coward]

No.

What really pissed her off was getting a bill for using her own images on her own website.

Re:Not surprised

[pr0fessor]

Except when that commercial use is to file law suites against people using those public domain images claiming copyright infringement and attempting to take down and/or receive payment based on copyrights that they don't posses.

Re:Not surprised

[pr0fessor]

My brother received a copy infringement notice on his bands domain from a company claiming to represent a third party that owned the copyright. They are signed to a small indie label and register copyright for everything before it's released to the public.

He scanned the copyright confirmation and registration and sent it to his hosting provider.

Re:Not surprised

[spire3661]

So have him pop up his own website and post links to it on Facebook. Its what i did when FB started censoring my fair use movie clips i sometimes use in conversations as examples. No one owes you hosting.

Re: Not surprised

[slazzy]

It's even worse on youtube, I've had google simply start stealing adsense revenue for a video, and paying a recording company instead, without notice and the link to dispute was broken... Eve worse the music I was using in the background was youtubes own free provided music.

Re:Not surprised

[Stan92057]

gizmodo.com/study-people-who-point-out-typos-are-jerks-1767969516

Re: Not surprised

[Calydor]

Then they were NO ONE's pictures.

Re: Not surprised

[wbr1]

Then they were NO ONE's pictures.

They were EVERYONE's pictures.

FTFY

Public domain belongs to everyone, yet we let companies like Getty shit all over OUR property, then charge us for the privilege.

Wake up people...

Re:Not surprised

[pr0fessor]

I'm not writing a dissertation.... piss people. That's Applied Arts... yes music.

Re:Not surprised

[Stan92057]

god i love that link lol try reading it. Your a jerk, just own it.

Re: Not surprised

[jaa101]

Then they were NO ONE's pictures.

No, they were and are her pictures. She retains the right to identify herself as the creator of the pictures. This is a valid sense of ownership. Or are you going to tell me that "Huckleberry Finn" is no longer Mark Twain's novel because it's in the public domain?

Re:Not surprised

[gfxguy]

How do you know that? I read the article - she passed the images into public domain in 1988; I highly doubt they were digital at that time, so someone took the time to digitize and catalog them. How did she get a digital copy? She could have done it herself, sure, but do you know that? Neither do I. How do we know she doesn't use the service at all? How do we know she didn't pull them from Getty? I think we're missing too much information here to slam one side or the other. As far as you know, she pulled it from Getty (or from somewhere that used Getty) and put it on her website - the digitized version might very well be subject to copyright by the entity that did the work. If she scanned it herself, or had a service digitize it from a negative, I'd agree with her side of the story... but we don't know.

Re:Not surprised

[Dogtanian]

I read the article - she passed the images into public domain in 1988; I highly doubt they were digital at that time, so someone took the time to digitize and catalog them. [etc etc]

Irrelevant as per my reply to your other post above.

Standing.

[Macdude]

As she has released her photos into the public domain she has no standing to sue for damages. Getty Images, and anyone else, is free to use the images as they see fit, including selling them.

But Getty shouldn't be getting away scott free, as the images are in the public domain they have no standing to sue anyone for using the images without a license.

This is not an area the legal system is setup to handle very well.

Re:Standing.

[Anonymous Coward]

Pretty sure the legal system just said it is okay to send out extortion letters for public domain images.

Re: Standing.

[PPH]

That the plaintiff has no standing

This is why Highsmith 'lost'. Sure, she didn't have to pay $120 for the use of photos that were in the public domain. But she isn't the proper plaintiff to raise legal issues over Getty Images activities. What they are doing is committing fraud: Wrongful or criminal deception intended to result in financial or personal gain. They don't own exclusive rights to her works, but they represent themselves as having them.

Sadly, there is no one in a position of standing to protect the public domain that is willing to file such charges. Theoretically, that should be the arm of the federal government in charge of copyrights. Or possibly the DoJ. But it appears that current policy is to allow rent seeking activities using public property.

Re:Standing.

[vux984]

Pretty sure the legal system just said it is okay to send out extortion letters for public domain images.

In precisely the same way that if you camp on my cousins front yard and I sue you for the tort of tresspass; the courts will dismiss the case because I don't have standing.

The courts aren't saying you can can camp on my cousins front yard. they are just saying *I* can't sue them for it. My cousin, on the other hand...

Or perhaps if it rises to the level of criminal trespass the police and state can prosecute directly.

But in any case, *I* can't bring a lawsuit over it.

In this particular case, I'd suggest that any one extorted by getty should be suing them. And further, that in this case it should rise to the level of criminal copyright infringment and that it would be in the publics best interest for the state to prosecute the case on behalf of the public.

Re:Standing.

[Stan92057]

Wouldn't the courts be the agent of the public as well?

Re:Standing.

[rectalfeeding]

But Getty shouldn't be getting away scott free, as the images are in the public domain they have no standing to sue anyone for using the images without a license.

This is not an area the legal system is setup to handle very well.

Perhaps Trump will Make America Great Again. I'm sure our founding fathers just weren't smart enough to figure out a legal situation like this. Trump can complete their divine plan.

Re: Standing.

[vux984]

As soon as person A releases the work to the public domain they no longer own copyright on it. They have standing to sue when B tries to license it back to them or restrict there own use of it.

But they can't sue B for the 'general misuse of that public domain image' in terms of their attempts to license it to others.

Now personally, I see a wedge of reason for there to be a cause of action there,

I've been mulling that over too since posting. By releasing it into the public domain, one interpretation is that their are no copyright holders; but another is that the 'public' is the copyright holder and the copyrights have been transferred to "the public". And by that interpretation any member of the public could sue over misuse... but also by that interpretation Getty images is also a legitimate copyright holder attempting to sell licensing. (admittedly they are attempting to sell licensing to people who are already themselves copyrigth owners... but im not sure that is illegal.

For example... Michael Jackson owned the Beatles catalog at one time, but there was nothing illegal or even shady about the prospect of say a record store wanting to sell him a Beatles CD and effectively get him to pay for a licensed copy of music he already owned the copyright on.

On the other hand, the whole thing smacks of abuse here with getty images ... and if its not illegal it certainly should be. But the courts function is to adjudicate the law, not make it. So as is often the case, it falls to a dysfunctional congress to fix it.

Re: Standing.

[mrchaotica]

Theoretically, that should be the arm of the federal government in charge of copyrights. Or possibly the DoJ.

Or any member of the public. After all, a plain reading of the phrase "in the public domain" means exactly that: that it is "owned" by every member of the public, collectively, so why shouldn't every "owner" have standing?

Re: Standing.

[BancBoy]

Michael Jackson analogies are the new car analogies. I would hope for more of these in the future.

Re:Standing.

[guruevi]

They are in the public domain, you can in fact threaten to sue people when they use them or collect royalty payments for them. Threatening to sue or collecting owed debts in a commercial setting is entirely legal and possible because the company does not enjoy the same protections a consumer has.

In fact, a debtor can sell your personal debt to a commercial collection agency if you ever start a business and they can continue harassing you without limits because a commercial debt does not have the same protections.

Re:Standing.

[gfxguy]

IANAL but I think there's more to this story that we're not hearing; there's a lot of things we simply don't know and I think it looks foolish to draw conclusions about it without knowing the details. She released the images to the public domain in 1988. How many photographers were using digital cameras in 1988? Let's say none, since the first commercially available digital camera didn't come out until 1989. Anyway, that means Getty probably scanned in and cataloged all of those thousands of images she "donated" to the public. They provide a service, they provide access to millions of searchable images (not something you can do for free). Was Carol using one of those images that Getty digitized? Did she get it from them, or from someone who got it from them? There's too much we don't really know about it. If she digitized it herself from her own pictures or negatives, then Getty was completely in the wrong, here, but we don't know.

Re:Standing.

[gfxguy]

It's a lot more tricky than that, and I think people should refrain from following the big-company-bad, artist-good mantra when we don't know all the details. For example, if I create a painting and "donate" it to the public domain, if someone takes a picture of it they absolutely have a right to license the use of that picture of it. You're free to go take your own picture of the painting, or pay for someone else's picture of it... or even possibly get it for free from somewhere else.

In this case, while I certainly don't know all the details either, these had to have been physical pictures (based on the year she released them to the public domain - a year before digital cameras were sold commercially). The way I see it, if she used a digital version of the image that Getty created, it's a far different story than if she scanned in her own physical copy. I know it sucks that someone would want you to pay for something they wouldn't even have if you hadn't given it to them... it's sucks, but there's not much legal standing to complain. Without more information, I don't think any of us should be demonizing anybody at this point.

Re:Standing.

[dcooper_db9]

I don't agree that she should have no standing, just no more standing than any other citizen. As I understand it that's the difference between res publicae and res communes. Res communes is for the enjoyment of all. Res publicae is owned by all the citizens. The image is property of the public. Any citizen should have standing when a private entity claims ownership of the public's property.

Re:Standing.

[Dogtanian]

if someone takes a picture of it they absolutely have a right to license the use of that picture of it. You're free to go take your own picture of the painting, or pay for someone else's picture of it... or even possibly get it for free from somewhere else.

You've already made this point several times elsewhere (specifically, four times in this thread AFAICT) and as far as I'm aware, you're mistaken.

Under US jurisdiction (but not necessarily elsewhere), if your photograph- or a digital scan- is a purely mechanical reproduction with no creative input, you can't claim copyright on it and I'm quite entitled to use it without paying you.

(I guess if you can con someone into agreeing to pay your "license" fee, there's not necessarily anything illegal about that, but you shouldn't be able to claim that they're legally required to do that).

Re:Standing.

[Dogtanian]

Regarding the *possibility* that Getty might have scanned her images and she might have used those copies- that's irrelevant for reasons I already posted in response to one of the other three posts where you made this point.

Her use of Getty's database services may be a separate issue, but unless they're they've actually alleged in court as part of their case that she did that (and agreed to their terms), it's irrelevant speculation.

Re:Standing.

[gfxguy]

Perhaps Getty argued they had creative input. Perhaps they not only digitized it, but color corrected or cleaned it up. Again, as I've also stated several times, we don't know enough information to pass judgment.

Re:Standing.

[Dogtanian]

Perhaps Getty argued they had creative input. Perhaps they not only digitized it, but color corrected or cleaned it up. Again, as I've also stated several times, we don't know enough information to pass judgment.

It was *you* who originally raised this as (a purely hypothetical basis for) a claim on Getty's part! I merely responded explaining why I didn't believe it would be valid.

Similarly, in response to your speculative example that they might have applied colour correction and cleaning up, these would probably fail for similar reasons, i.e. non-creative input below the threshold of originality under US law.

But as you've stated several times, we don't have enough information, so this *is* all just speculation- on your part.

So Getty/Alamy

[future assassin]

take public domain photos, send out extortion letters to anyone using the same photos and in those letters they say they are the copyright holder or represent copy right holders and you must pay up and they off scott free? WTF?

"Neither Side a Clear Winner"

[hipp5]

"Neither Side a Clear Winner"

From the summary it appears as if yes, there certainly was a clear winner: Getty Images. I guess you could argue that they didn't get the $120 they demanded from Highsmith, but they've managed to get all of the claims against them dismissed.

Re:"Neither Side a Clear Winner"

[Anonymous Coward]

And the judge also sealed the pre-trial discovery of information under a gag order... which I figure would protect Getty WAY more than the plaintiff Ms. Highsmith.

Also, the judge won't release his reasoning until later.

This smells to me....

Re:"Neither Side a Clear Winner"

[harvey the nerd]

Staff lawyers or annual budget item.

fraud and extortion

[harvey the nerd]

Basically she has helped establish that the companies are copyright tolls, prone to a little fraud and extortion.

Getty now a known perjurer

[laughingskeptic]

Hopefully defense attorneys will use this effectively going forward. Getty won't be able to claim anything and should have to prove everything. Signed document ... no good, we want to depose the signers, etc. That employee doesn't work for you anymore? ... too bad. Normally a judge would not considered these requests reasonable, but they are reasonable in the face of a corporation that has knowingly misrepresented their ownership of copyrights in court.

Instrument of Gift

[Namarrgon]

There's an excellent discussion here about the legal meaning of Highsmith's Instrument of Gift.

There's a number of contradictory clauses in it, maybe three possible interpretations of what she intended, but one of them is indeed "full public domain" as apparently the court decided.

Yes, but that's the point

[aussersterne]

She received threats from Getty about not paying for using the images... which SHE HERSELF had taken and placed into the public domain.

None of this would have happened if someone hadn't decided to go after licensing fees for images that were taken from the public domain. Yes, they're free to sell what's in the public domain if someone is willing to pay for them, but the images are in the public domain. To go after people for using the images that Getty/Alamy themselves pulled from the public domain, and demand payment whenever they see those images used... is slimy.

Re:Yes, but that's the point

[Anonymous Coward]

umm.... wut?

Re:Yes, but that's the point

[LeftCoastThinker]

To go after people for using the images that Getty/Alamy themselves pulled from the public domain, and demand payment whenever they see those images used... is FRAUD. (FTFY)

She needs to refer this case to the attorney general of her state and let them prosecute the CEO on down the executive ladder for fraud and extortion. Pretty sure this fits the legal definition, and since it is a clear pattern (Getty has been sued and won before for this same BS) they need to pursue criminal convictions of upper management.

Re:Yes, but that's the point

[gfxguy]

Getty is a service - they are storing and providing the images, making them search-able and easy to find and use, and that's at least part of what people are paying for. It's like the GNU license - people can still charge for packaging it up and selling you the media. So the question I have is if she used the service to get the images. The pictures dated to 1988, so I think we can assume they weren't digital from the get-go, and that Getty perhaps did some work to digitize them.

If that's not the case, I absolutely agree that Getty is wrong and the court screwed up (and I also believe this may be the case because the "threatening" letter specifically mentioned copyright claims.... Getty can no more claim copyright than she can.

Re:Yes, but that's the point

[Dogtanian]

The pictures dated to 1988, so I think we can assume they weren't digital from the get-go, and that Getty perhaps did some work to digitize them.

Tough shit, then. As far as I'm aware, US law doesn't allow someone to claim (additional) copyright through mechanical and non-creative "sweat of the brow" (#) reproduction of artistic works.

This isn't the case in many other countries, but as far as I can tell, all parties and jurisdiction related to this case are US-based.

(#) This isn't necessarily the case for other things like compiled databases of public domain facts, but that's not what I was talking about here.

Screw damages...

[nightfire-unique]

Why on earth are people not paying criminal fines/serving time in prison for attempting to defraud this woman?

Isn't mail fraud still a thing? How quickly would an individual end up in prison for mailing out hundreds or thousands of fraudulent bills to large corporations?

The mind. It boggles. :(

Can we all send Getty an invoice for the PD images

[future assassin]

like they sent to the photographer, requesting $200?

Re:shortening

[lgw]

Everything California does is stupid, but there are plenty of good sniper rifles out there. Current record holder is a .338 magnum after all. Heck, if you're good enough, you can apparently use a .50-90 Sharps at 1500 yards (once Cali gets around to outlawing everything except black power rifles).

Re:Let a new age of trolling begin.

[Motherfucking Shit]

So let me get this straight, she licenses the photos for free public use, then a company (rightly) uses those images but (wrongly) "sells" them to people despite not having the right to do so and its OK?

That part is actually OK. It's legal to take something in the public domain and sell it, if you can find someone willing to buy it. I could put NASA's Astronomy Pictures of the Day up at AstronomyPorn.com and charge people $20/month to access it. I probably wouldn't get many takers, but it's legal. Since they're created by the federal government, (most of) those images are public domain, and I can do whatever the heck I want with them, including selling them.

What isn't legal is to demand payment from someone for something in the public domain. I can't send threatening letters to every other website that posts the Astronomy Pictures of the Day, because they aren't doing anything wrong, I don't hold copyright to the images, and they aren't required to license anything from me. That's where Getty was in the wrong; they have no more rights to the images than anyone else, they definitely have no right to make licensing demands, and they misrepresented themselves in both ways.

It's a shame they got away with it without even a slap on the wrist, but I can't say I'm surprised. Corporatocracy is only going to get worse for the next 4 years.

This is why FOSS / CC is better than PD

[Qbertino]

This is why FOSS / Creative Commons is better than public domain.
Had she released her images under a appropriate CC license, she could've sued Getty into next wednesday as she attempted.
With the images only being public domain, none of her rights were infringed expect for the unjustified bill.

I feel sorry for her. We should collect some donations.
This is one of the reasons I hate big-ass foundries, be it font or images. And the same reason I love CC and the artists creating things for a reasonable price.

Re:This is why FOSS / CC is better than PD

[gfxguy]

Perhaps. Did CC even exist back then? I guess not, since it was formed over a decade after she released her photos. But for the record, let's say someone publishes a hard copy of CC'ed short stories. Are they not allowed to charge for it? For some reason it doesn't surprise people that companies are selling GNU licensed software (although you can largely get the same stuff for free) because they made a nice package out of it.

Re:This is why FOSS / CC is better than PD

[Bigjeff5]

I'm pretty sure they can charge for their packaging and marketing of the stories, i.e. yes, they can charge for it.

What they can't do is create and sell their product, then look up instances of people also publishing those stories and charge them licensing fees.

That is what Getty did here, they just happened to do it to the original author, so she was absolutely certain they had no right to charge her. Her mistake was in thinking she still had any right to sue them for misrepresenting a copyright claim on her works. If she had CC'd them, she could still do that, but she released them to the public domain, so she had no basis to counter-sue.