Getty bites back at copyright trolling claim

Getty is again defending itself against copyright infringement claims after US photographer Carol Highsmith found the stock agency lifted 18,755 of her public domain photos and started licensing them.

One of Highsmith's photos.

One of Highsmith’s photos.

She discovered the ‘gross misuse’ of her photos after her non-profit, This Is America Foundation, received a threatening letter from License Compliance Services (LCS) claiming copyright violation for one of her own images!

LCS shares individuals who hold executive positions at Getty, but is also contracted by other stock agencies to demand payment for supposed infringement.

‘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,’ LCS said in the letter.

Without proof of a license there’s no easy way out: ‘You may have employed a third party, former worker or intern to design and develop your company’s site. However, the liability of any infringement ultimately falls on the company (the end user) who hired that party, employee or intern,’ it said. ‘While we appreciate the effort of removing the material in question from your site, we still need compensation. Your company has benefited by using our imagery without our permission. As the unauthorised use has already occurred, payment for that benefit is necessary.’

Over several decades Highsmith visited and photographed all US states, donated this visual documentation of America to the Library of Congress, described as ‘one of the greatest acts of generosity in the history of the Library’.

The thousands of photos may be free for use, but the lawsuit states Highsmith maintained copyright over the images – it never dissolved or passed on to another body.

There’s examples in the lawsuit of companies gaining permission to use photos commercially, from movie and TV producers. However Getty, which ‘firmly supports a more image-rich… world, but one that recognises and remunerates the content creators who create this imagery’, made no contact with Highsmith.

‘Getty has no contract or other agreement with Highsmith… and has not otherwise obtained any license, permission, or other grant of rights in the Highsmith Photos from Highsmith (other than the right to reproduce and/or display them for free, which she has granted to everyone),’ Joseph Gioconda, Highsmith’s attorney, wrote in the lawsuit. ‘Instead, Getty misrepresents the terms and conditions of using the Highsmith Photos by falsely claiming a user must buy a copyright license from Getty in order to have the right to use the Highsmith Photos.’

Getty not only appropriates an ownership role by licensing the photos’ copyright, but also enforced that right by threatening litigation against supposed infringers. To Highsmith this qualifies as unlawfully assuming copyright ownership.

‘(Getty) misappropriated Highsmith’s generous gift to the American people’ and is ‘threatening individuals and companies with copyright infringement lawsuits that they could not actually lawfully pursue,’ the lawsuit said.

It adds that third parties received demanding letters, despite sourcing the free images from the library – even after LCS was informed its clients hold no copyright ownership in December 2015.

The library website states there’s ‘no known restrictions on publication’, but ‘it does not own rights’ and ‘rights assessment is your responsibility’. It supplies credit to Highsmith, however this mysteriously vanished in Getty’s version, which credits the photo to Buyenlarge/Getty Images.

Getty has sold countless licenses to news outlets, book publishers, and elsewhere. (And no, Highsmith hasn’t received 15 percent commission of these sales!)

Getty said it will ‘vigorously defend’ itself but hopes to settle the issue out of court, it said in a public response following the lawsuit.

Getty’s statement hints at what will become important pieces of information: ‘It is standard practice for image libraries to distribute and provide access to public domain content, and it is important to note that distributing and providing access to public domain content is different to asserting copyright ownership of it,’ Getty said.

It has removed the images from its website.

Last year ProCounter observed that Corbis, a stock agency acquired by Getty, was licensing historical public domain images of Australia, so it indeed appears to be standard practice – whether it’s legal will require interpretation from a judge.

Getty also passed the blame onto LCS and Alamy, distancing itself from both organisations.

‘LCS works on behalf of content creators and distributors to protect them against the unauthorized use of their work. In this instance, LCS pursued an infringement on behalf of its customer, Alamy. Any enquiries regarding that matter should be directed to Alamy; however, as soon as the plaintiff contacted LCS, LCS acted swiftly to cease its pursuit with respect to the image provided by Alamy and notified Alamy it would not pursue this content.’

LCS (and Picscout, another defendant listed in the case) does Getty’s dirty work. It scrapes the internet with computer programs to identify images that their clients license and takes no prisoners. This approach is often described as ‘copyright trolling’, as the letter states there’s proof of violation and uses heavy legal mumbo jumbo to intimidate an individual or organisation into paying.

It may be difficult for Getty to prove LCS isn’t a ‘wholly-owned alter ego of Getty’.

Three of LCS’ executives also hold executive positions at Getty, and LCS lists Getty’s corporate address as its registered business contact.

Highsmith is ambitiously seeking US$1 billion in damages. Statutory damages of $25,000 is sought for each violation, of which there are 18,755 equalling US$46 million.

As Getty violated the copyright of Haitian photographer Daniel Morel, in the last three years, this can be trebled to a mighty US$1 billion.

Click here to read Highsmith’s lawsuit.

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