Photog Seeks $1 Billion from Getty for Copyright Infringement

[Kym]

http://pdnpulse.pdnonline.com/2016/07/photographer-seeking-1-billion-getty-images-copyright-infringement.html


Photographer Carol M. Highsmith has sued Getty Images for copyright infringement, alleging “gross misuse” of 18,755 of her photographs of Americana. She is seeking $1 billion in damages, an unusually high amount for a copyright infringement claim.

Highsmith filed suit July 25 in federal court in New York, alleging that Getty and its subsidiaries have been charging fees for the use of her images without her consent. She has been providing the images to the Library of Congress since 1988 for use by the general public at no charge.

“The defendants have apparently misappropriated Ms. Highsmith’s generous gift to the American people,” she says in her claim. “[They] are not only unlawfully charging licensing fees…but are falsely and fraudulently holding themselves out as the exclusive copyright owner.”

Highsmith says she never abandoned her copyrights to the images. She says the Library of Congress had agreed to notify users of the images that she is the author, and that users must credit her. But Getty has not only distributed her images without her permission, it has failed to give her proper credit, despite the copyright information attached to her images, Highsmith alleges.

Hope she smashes Getty !!

[Kym]

More...

http://www.latimes.com/business/hiltzik/la-fi-hiltzik-getty-copyright-20160729-snap-story.html


Carol Highsmith is a distinguished photographer who has traveled all over America, aiming to chronicle for posterity the life of the nation in the early 21st century. She’s donating her work to the public via the Library of Congress, which has called her act “one of the greatest acts of generosity in the history of the Library.” The Carol M. Highsmith Archive, which is expected ultimately to encompass more than 100,000 images, is accessible royalty-free via the library’s website.

So one can imagine Highsmith’s reaction last December when she got a threatening letter from a firm associated with the photo licensing agency Getty Images, accusing her of license infringement by posting one of her own images online. The firm demanded a “settlement payment” of $120 from her nonprofit This Is America! Foundation, backed up by the implicit threat to take her to court.

[I @ M]

Thanks for that Kym, the entire article you linked is well worth a read.
The especially interesting bits are how Getty sent her a bill for the use of her own image and then where the very high amount demanded in her suit is due to being able to triple the claim amount because of previous proven copyright infringement by Getty.
I'm with you, hope she has big win!!!

[ricktas]

I agree. I hope she wins too.

[Cage]

Well Getty have set the basis for her claim.

She should have a very good argument for $120.00 for each infringement.

[mongo]

Very interesting case indeed. She says she never gave up copyright - this may be true and correct. If so, she should succeed in theory. However, an interesting aspect of this case is that she gave away certain rights with the intention that her images could, effectively, be used for free by the American people. She gave that right away to the American people. Therefore, if any person has been wrongly charged for using the images, they should be entitled to a refund of the fee OR 'the American people' i.e. The US government as custodian of those rights. There may be a creative arguement that she, as the author, should not be the person entitled to any recoverable damages.

Just a crazy Mongo thought as devil's advocate. However, quietly, Mongo hopes she beats the pants off them !

[Mark L]

mongo, the problem with your reasoning is Getty came after her claiming copyright.
If they'd acknowledged the photog and not taken money from reproducing her images??
Are Getty Images american people? Multi-national company more likely.

[mongo]

Mark, Mongo thinks you have misunderstood what he was saying.

Mongo's understanding is that the photographer has been leaving her work open and free of charge to be used by the American people for years. It was only after discovering that Getty was using her images and charging for their use that she "re-asserted" her copyright.

Mongo has no difficulty seeing even corporations as "the American people" . Therefore, individuals and corporations could use her images for their personal use as intended and without charge. Personal use does not include using them as a "business". Once individuals or corporations use the images outside these intended parameters, several potential problems can arise.

First, some reasonable assumptions:-

1. Getty used the images in a way that had not been authorised even under the original conditions set by the photographer
2. individuals and probably corporations were charged a fee by Getty to use the images
3. those individuals and corporations were not obliged to pay a fee to Getty (or perhaps at all - depending on what use they were put to)
4. there seems a fundamental situation therefore that there must be recompense by Getty to someone but who is that someone ??


The immediate notion is that the photographer is to be the someone who should get the recompense/damages. However, in the circumstances of this case, there may be potentially other possibilities:-
1. Getty should refund those it improperly charged an unauthorised fee to;
2. because of the potential difficulty of finding out who the parties are in No. "1" above over the years, maybe the refund should be to the US government as the custodian of the rights left by the photographer for the benefit of "the American people" (which can include corporations)
3. Maybe the photographer should be allowed to seek damages in her own right ?? but this will not carry out her own expressed intention that the images were to have been free to the American people. The American people could only have used the images for "free" if they get any fee they paid for them reimbursed. The photographer getting money from Getty will NOT achieve this UNLESS she then donates it to the US Government which will in turn set up a means by which those who have been wrongly charged for the use of the images can claim a refund of their fees. This third option is very costly and complicated and not likely to fly;
4. irrespective of all of the above, the courts might think that the photographer should just recover damages for breach of copyright (unless they find she waived it and even in such a case, the courts are unlikely to let Getty unjustly enrich itself from the work and efforts of someone else) and just keep the damages herself. This might be the simplest thing to happen. However, Mongo suspects Getty's lawyers may be dreaming up all sorts of defences

This is what Mongo was saying ..........that the answer to the question may not be so clear cut .

[Kym]

I'm guessing the lawyers representing Carol Highsmith have a case or they would not bother.

Obviously the $$ involved make it interesting.

Getty are at least morally wrong (charging for free resources; and trying to get $$ for what is not theirs) and I think legally wrong.

[mongo]

There is no doubt that Getty are wrong in more ways than one in all this if we understand the facts correctly. If so, it is likely to be a compensable wrong. Who gets the compensation and how much will be the two questions in Mongo's mind.

By far more interesting will be how the court looks at this (if it gets to a court hearing) and what new principles (if any) or old principles the court affirms. Gosh - this is more exciting than photography !