‘Finders keepers’ says Getty

Getty has asked the US District Court in New York throw out the lawsuit filed by photographer Carol Highsmith, who sued the stock agency for licensing her public domain images.

One of Highsmith's photos.

One of Highsmith’s photos to which Getty thinks it has rights.  

Highsmith found out about Getty’s ‘gross misuse’ of her 18,755 photos of America she donated to the Library of Congress after the clueless stock agency sent her a letter demanding a fee from her of an image she captured!

In her $1 billion lawsuit she claims Getty assumed ownership of the photos – which anyone is free to use – by selling licences and then demanding payment from, and threatening legal action against, those who didn’t source her photos through Getty.

Getty’s defence is that the photos are ‘unquestionably in the public domain’ and that Highsmith forfeited any copyright ownership the moment this happened. Therefore she cannot make a copyright claim. So Getty is merely exploiting and profiting from Highsmith’s philanthropy. (And that’s totally ethical, ok?)

Besides, it had to make copies, then take the time to index, catalogue and present them, so it has not broken any law, Getty claims. (Which could be seen as something like a burglar claiming that it takes time, effort and skill to do what he does!)

The agency says this happens all the time outside the stock photo business, highlighting how publishers charge money for copies of books of public domain works by Shakespeare and Dickens.

Highsmith’s lawsuit isn’t a traditional copyright infringement claim – she said Getty has violated the US Digital Millennium Copyright Act (DMCA) by removing, falsifying, or modifying copyright management information. In her lawsuit there was a focus on how Getty credited most photos to ‘Buyenlarge/Getty Images’ despite the original source, the Library of Congress, clearly crediting Highsmith and even suggesting she may still own copyright.

As for a DMCA claim, Getty says she has taken this route ‘for good reason,’ as ‘Highsmith owns no such copyrights, having long ago dedicated [her] photos to the public domain’.

PDN states that Getty’s response, filed September 6, argues that DMCA claims cannot be made if there’s no existing copyright ownership.

‘Getty Images could not have acted with the requisite intent or knowledge of infringement,’ it said.

A ruling on Getty’s response may take between weeks and months, PDN said.


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