Photographer Suing Getty Images for $1B
petapixel.com
petapixel.com
It's akin to Getty setting up a small tent inside of Central Park, and asking people that walk by to pay an entry fee.
But Getty goes 1 step further: They hire strongarm guys to go around the park and tell people (one-on-one) that they skipped out on their 5 dollar entry fee and they can 'settle' with them right now or be taken to court.
It's terrible.
I can't imagine how to solve that without a total change of copyright laws, other than scare the bejesus out of them. Which seems to be exactly what the photographer is doing.
What?
Sounds more like they are in flagrant violation of existing copyright laws, and deserve to get their head handed to them in court.
A better law would fix the incentives: to make copyright "abuse" a sliding scale, one that starts long before the current point where something becomes a violation of the law, where the more profitably-abusive an act is, the bigger a fine you'll get for doing it. The cost-benefit should always work out in favor of not violating the spirit of copyright law.
Hahahah... You should do stand-up for Goldman Sachs
Wish Thier would represent him and kick a hole in Getty!
The photographer is a female, and the person you named spells his last name Thiel.
Wouldn't prosecution for fraud be enough?
I guess I would say it is one thing to 'sell' public domain pictures in your database along with privately held photos - using a subscription model, Getty could say it is just creating a one stop shop and charging for that service. I am sure their lawyers thought about that long ago, when they first brought on the Public Domain photos.
But to go to the level of actually shaking people down for money when they are using a photo that is Public Domain leans toward organized crime, with copyright laws behaving as accessories to enforcement. It's like charging 'protection money' when you should naturally have freedom from harassment.
How many uncounted people have paid that shakedown fee for their Public Domain pictures, not knowing any better...
Proves the old adage - Knowledge is Power.
Note that the victims of Getty's RICO tactics here don't have standing to sue for copyright violation. Only for the possible fraud elements. This reduces the number of parties with significant legal protections tremendously.
The case has to proceed quickly and effectively. Long delays or appeals will steal the thunder.
The sting's got to be harsh. I'm liking the billion-dollar amount, as that's enough to make virtually any company sit up and take notice.
But the real problem is that low-grade penny-ante DMCA takedown, C&D, or other strong-arming, on questionable bases, are likely to remain profitable for a long time.
Getty [allegedly] took images that didn't necessarily belong to them, charged for them, and also sent copyright notices after anyone that hadn't paid for them.
It's pretty simple. edit: allegedly
Then Getty images handled the situation poorly.
Look at another Getty case.
Haitian photographer Daniel Morel posted some photos to TwitPic. 'Lisandro Suaero' downloaded them and sold them to AFP / Getty. Then Getty tried to sue Morel. [1]
Morel was awarded 1.2 million [2]. Getty tried to use a weird argument that they had a deal with Twitter so they didn't owe him anything.
[1] http://blog.jeremynicholl.com/2010/05/03/afp-steal-photos-th...
[2] http://www.digitaltrends.com/social-media/1-2-million-lawsui...
I think the issue comes into play when Getty tries to enforce a copyright they don't actually own by threatening people who use the images. That's where they've crossed a line, and I'm fairly confident that if Getty tried to sue anyone over it, the courts would decide in favor of the defendants. Of course, just defending oneself in court against someone like Getty could get expensive, so it's obviously better if the issue could be sorted out preemptively (as this photographer seems to be doing).
https://www.law.cornell.edu/uscode/text/17/512
(3) Elements of notification.— (A) To be effective under this subsection, a notification of claimed infringement must be a written communication provided to the designated agent of a service provider that includes substantially the following:
[...]
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
=====
I'm having trouble figuring out if there's any way they could have a good faith belief that they were the copyright holders here (I suspect not), though I do not know whether or not they ever sent DMCA notices containing all of the elements.
Getty maintains the "exclusive right" to license an image on behalf of the copyright owner (typically a photographer). The photographer does not assign ownership, just the right to license.
They use automation to find cases of license violation--using the image without paying Getty a license fee. That triggers an automated message saying "You owe us $500."
Getty doesn't (as far as I can tell) verify that the photographer owns the rights to the image, and when a person asks for that proof, Getty's response is to "Check the website" and will only submit further proof upon subpoena.
From the article:
"Highsmith says she never abandoned her photo copyrights"
- Pay me and I'll make sure this guy won't beat you up
- But that's your brother ..
- So what do you say ?
Before setting up that tent, some random person tells getty "Hey I own this park," pointing to Central Park, "You can charge admission on my behalf."
Getty then setups up a tent without a second thought about verifying the veracity of the persons claim.
//
I'm not sure if Getty just sucked in all those public domain images and said "Is private now." or through their submission process, some individually claimed to own the copyright, and had Getty do the dirty work.
She owns the rights to the images. She licensed the Library of Congress to distribute them for free, but did not release them into the public domain.
Getty is selling her images. That's a for-profit DMCA violation. The statutory penalty applies, which is from $750 per image to $30,000 per image. She makes a case that the higher end of the scale should apply, because some of her images are quite famous. Two have appeared on US stamps, for example.
Getty recently lost a DMCA case for doing something similar. That makes this a second offense and triggers the triple damages provision in the DMCA. So, as a matter of law, she is entitled to at least 18,755 * $750 * 3, or about $42 million. That's a minimum.
Having said that, if it turns out that the library of congress is responsible for the infringements (because they published the images and labelled them incorrectly as being public domain) then Getty would be off the hook for infringement but the DMCA claim of falsifying the copyright information would still apply (as you can't claim exclusive copyright over a public domain work).
I suppose it's possible that an unscrupulous third party falsely licensed the "public domain" images to Getty, which would make Getty responsible for neither the falsification of copyright information, nor the infringement. I guess in that case Getty would still be found to have been infringing, but not deliberately.
It seems to me that mislabeling wouldn't make the LoC legally responsible for the infringement, but might make Getty not liable for any infringement that happened entirely before they were made aware of the incorrect labeling. Or maybe not; since willfulness is an enhancement on liability for infringement liability [0], not a prerequisite, the fact that Getty did not know that the images were subject to copyright may not be a defense.
> I suppose it's possible that an unscrupulous third party falsely licensed the "public domain" images to Getty, which would make Getty responsible for neither the falsification of copyright information, nor the infringement.
AFAICT, that wouldn't necessarily legally relieve Getty of liability, though it would make the other party liable to the copyright owner for willful infringement, fraudulent claims of ownership, and contributory infringement (with regard to Getty's infringement), and also liable to Getty for fraud and potentially other torts.
[0] see, e.g., 17 U.S.C. Sec. 504(c)(2)
Was Getty not claiming copyright of public-domain images (from their "assumption")?
So if they sent her a DMCA of her own images, as one might assume based on what was said, then it could be interesting if that gets brought up in court.
They do police copyright. Whether they are required to (other than as a contractual matter with certain owners) is a little more debatable.
This is incorrect. According to the Library of Congress:
"Ms. Highsmith has stipulated that her photographs are in the public domain." [1]
> 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
However, "inalienable" was incorrect - you can most definitely sell your copyright.
Second, apparently I was wrong even then: see https://cr.yp.to/publicdomain.html
Face, meet egg.
if i read 17 U.S. Code § 201 (d) clearly, it suggests you can transfer ownership of copyright in any normal legal way of executing a contract.
I think your confusion is around the idea of works falling into the public domain via expiry of copyright, and/or works that do not have an explicit declaration of rights ownership.
In this case it seems she was pretty clear about her transfer of ownership. I don't believe you can rescind that just as you prefer, at any time.
Are you maybe thinking of Moral Rights? Those are inalienable and not transferrable in many countries. https://en.wikipedia.org/wiki/Moral_rights
Copyrights are also assigned automatically to the creator by the act of creating something, that might also be what you were thinking of.
Also explicit permission is given to the library to make copies of the work for security,preservation etc.
[1] Google Gov-Uscourts-Nysd-460787-1-2
that seems pretty clear cut to me. Conditions for reproduction only seem to express the general ways the content should be available for users of the library. Nothing limiting availability, in fact it's promoting methods of being available.
So that leaves the question of a: whether or not getty et al were able to sell works in the public domain. My quick read of it seems that if they can come up with some kind of argument that they are selling derivative work (including perhaps some kind of unique identification layer, or meta data perhaps ... ?), OR that they are selling a reproduction. tenuous, but that may be their justification.
as for requesting a license fee, well that's on LCS and Alamy (who I don't think have had an issue in the past 3 years of this stuff, so the multiplier doesn't apply here)
NB: Alamy being a uk company, so they can hide behind a corporate shield if their assets are mostly offshore...
this is the settle page, from the first exhibit: https://settle.lcs.global/103173853953 -- that's what she got sent. It doesn't appear that they argue they are the exclusive license holder, and especially if they argue they are holding a license to derivative work -- well. that's a whole ball of wax.
Thinking further, since she no longer holds the copyright to these images, and the United States is not listed as a co-plaintiff, I'm not even sure she has standing to bring this case at all -- but, on that, IANAL. :P
For example:
This photo-
http://www.gettyimages.com/license/515020819
is actually this photo:
https://www.flickr.com/photos/library_of_congress/2178341487
which was taken by a now dead photographer called Russell Lee, and owned by the Farm Security Administration.
PS: this same person appears to have about 500k listings for prints etc on amazon.com..... why aren't they a co-defendant?
Wouldn't this make all electronically transmitted media into "derivative works", though? This sounds like such a reading would make the concept meaningless (and also possibly contradict the outcome of other infringement/attribution cases)
Additionally, every time I download something from the web and store it on my hard drive, my OS will enrich it with metadata: file name and path, timestamps, local user, permissions, etc. So unless a site author grants all visitors the permission to create derived works, I'd be infringing just by visiting their web site.
Finally, if you assume that only some metadata counts as creating a derived work, Getty would have to prove that all users they threatened did in fact use Getty's "enhanced" version of the image and not the original. I find it very unlikely that the photographer herself would have used Getty's version and not herselfes, so I don't think they did that.
I hereby dedicate to the public all rights, including copyrights throughout the world, that I possess in this collection.
I have the feeling the lawyer who drafted this instrument of gift was a very competent one as in USA law the copyright of a collection or compilation does not affect the copyright of the works included in it.
17 U.S.C. § 103(b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.
Alamy claim they delete all copies of contributor photos from their servers 45 days after you terminate your contract but failed to do this, and continued serving my images for many months after our agreement ended. When I contacted them they first claimed it was Google's fault (cached images) and them later admitted they had done it but were still defiant and claimed they could do it because finding my images was 'difficult'.
They are a large photo agency and their infrastructure is first-class, so I had some interesting email and telephone exchanges with Level 3 and AWS when I sent them DMCA takedown notices and explained that there was no 'safe harbor' for them and I had absolute proof (the Exif metadata with my name and copyright notice was still preserved in the images and I provided direct alamy.com/... links to them hosted by Alamy).
Blog post here, if you want the whole story including replies from Alamy. They seem like one of the better photo agencies but damn, they really don't like being held to the same standards they hold the public to. https://www.tombrossman.com/blog/2014/alamy-copyright-and-ex...
It would be like coming home to find a naked vagrant sitting on your couch, demanding that you pay him rent.
That says, "I own clothes, and usually wear them in a socially acceptable way, but I made an exception just for you and your formerly unstinky couch cushions."
Live by the sword. Die by the sword.
Edit: "negligence" means you should have known of the risk. "Recklessness" means you knew of the risk but acted anyway.
Sorry, could not resist.
Gross negligence is often more along the lines of "we are 99.999% sure you are lying, but we can't prove it".
In Wilson v Brett Baron Rolfe (later Lord Cranworth) said he "could see no difference between negligence and gross negligence; that it was the same thing, with the addition of a vituperative epithet."That's the problem, isn't it? Many crimes, for the law to apply, have to be committed knowingly. But if your internal controls are weak, and if cross-checking when billing is discouraged you just overbill on the chance that the customer will pay up. And you don't commit crime, only if you check and bill anyway, then it's crime!
If we are arguing language, the correct words should be "criminogenic environment".
No, "negligence", in law, means you failed to act according to the duty of care you owed, which can include knowing about a risk but failing to act reasonably to mitigate it as much as it can include not knowing about a risk that one reasonably should have known about.
Negligence and recklessness are not mutually exclusive
The poster above you is correct as to the test for negligence in civil causes of action.
The likely cause of this mix-up is that false-licensing touches upon the law of misrepresentation, which contains as a subset, rules for both fraudulent misrepresentation as well as negligent misrepresentation.
Your link discusses the ill-defined nature of the middle ground, indeed if someone is apathetic as to whether the actions they take are negligent, those actions being deliberate, then it appears to fall in the even less well defined middle ground between recklessness and negligence. The link summarises with 3 conditions for recklessness, the first two being:
>As to recklessness, the better rule to apply is that requiring a strict test, i.e., the defendant must (a) actually know the course of conduct he is about to embark upon involves the probability of death or great harm to another, and (b) choose to risk occurrence of harm. (duke.edu link, ibid ) //
It primarily discusses criminal recklessness and only briefly touches on torts, as copyright infringement is, so I'm not really sure how relevant it is.
Perhaps you could comment on this imagined scenario:
A company deliberately includes CC-NC works (for example) in their morgue files and then neglects to check whether those works are then sold or included in the works that they chase up as infringements. Indeed they consider the problem but choose not to investigate whether they might be inadvertently charging for works that they have no rights to charge for, isn't there deliberate negligence there? They chose to avoid doing what the notional reasonable-man would consider to be necessary to avoid copyright infringement? They don't know they're infringing and so their actions aren't reckless??
TL;DR I propose that if you avoid acquiring the knowledge that would make you aware how reckless something were, you continue to be negligent just deliberately so.
(Didn't read your link entirely, sorry).
>"I'm not sure which law school taught you that" (morninj) //
Isn't the point of the link that judges don't even the line between negligence and recklessness correctly and that state laws muddy the line considerably; that "criminal negligence" should be an oxymoron under what the author considers to be proper interpretation of the USC. However, and correct me if I'm wrong, "criminal negligence" is a charge that is currently brought quite properly in various States of the USA.
IANAL just butting in with my tupenneth in the hope of getting educated.
I am not versed in law, so please accept this as a request for clarification, not a debate.
Getty is using the license they got the images with, after all.
It is not like they are suing people for republishing a collection or something that could Getty could have created and have copyright in.
now what I don't know is the legality of attaching a license to a redistribution of a public domain work - technically one can claim recompression is transformative and that you hold a license to the altered work, in which case the origin of the file matters in defining if third parties are infringing (and this is why gpl works better in these cases, you don't get to change the license downstream)
IAMNYL edit: messed up
You can resell public domain works as much as you want, but you can't go around claiming an exclusive right to the image and trying to force other people to pay you to license a right that you don't possess.
One can claim whatever one wants, but I doubt the courts would fall for that.
More common is IANAL, which means "I Am Not A Lawyer".
No, because transformative applies to uses of the work, not the work itself. A recompressed image has the same uses as the original image so there's absolutely no scope for considering it to be transformative.
As far as attaching licenses to public domain works goes, you can do what you like. There are no restrictions. However, you can't claim to have an exclusive license, and you certainly can't claim to own any copyright in the work, because none exists.
Now $18,755B would make for a nice discouraging lawsuit that make any other company think twice about pulling this ever again.
I want Getty to go bankrupt as a result of the lawsuit. I'm evil I know but it's what they would have done so I see nothing wrong with that.
"We could have sued you for this much, but instead we're offering you a chance to settle for only this amount."
I would have sued them for the full amount the law permitted for each image if the company goes under as a result that would act as example/discouragement for any other company that would think about doing that in the future.
People get fined ridiculous amounts all the time as discouragement so why shouldn't companies have the same happen to them their technically a person in the US no?
Broadly speaking, the "content industry" has habitually been dragging individual file-sharers into court and claiming life-altering, bankruptcy-forcing judgements for more trivial violations, in order to terrify the general public into compliance.
If the threat of a $1B judgement is enough to threaten Getty with bankruptcy, if it's enough to scare other rights-claimers into making their businesses more businesslike, that's actually very comparable.
> Lochting also underscored that LCS and Getty Images are "separate entities and have no operational relationship."
> However, DNS records show that LCS' listed address is 605 5th Avenue South, Suite 400 Seattle, Washington, which is Getty Images' corporate address, a fact that she would not explain to Ars.
> "It’s a no comment in response to your follow up questions," Lochting e-mailed.
This comes from the same mindset that allow a original video by the author to be put off youtube by a big studio.
I think I read that big recording studios similarly uses lesser known artists songs in records under some weird law (pretending they couldn't find the copyright holder) and basically strongarm them if they come out and complaint. Does anyone know if its true and provide reference?
Essentially the legal system worldover is extremely for the power broker. The ones who needs the least protection gets the most and those that need it in most cases cannot even afford the least.
On the one hand, news orgs probably have a reasonable fair use case there, but on the other, they are profiting off content that the OP owns, and OP is rightly entitled to a portion of that evening's advertising proceeds if their content comprises a substantial part of the programming.
If someone snippeted CNN and played it repeatedly on their own channel as fair use, they'd get pursued hard, be unable to fund the legal battle, and be forced to do whatever CNN said lest a long and ruinous legal battle occur with spotty if any representation for the little guy. It'd a big multi-national law firm that bills at $1k/hr v. an innocent little person who probably doesn't know any legal terms at all and would be lucky to have $10k in savings.
Meanwhile, CNN and other large companies will openly trounce anyone and everyone they can because they understand that only a tiny fraction will actually be in a position to hurt them for it, and they'll try to leave that tiny fraction alone if they can help it. You'll try to sue them for an injustice and for the $20k they owe you and it'll explode into an 8-year, multi-million legal battle. The little guy still gets completely screwed over. Since big companies know this, they take full advantage and effectively, operate under a different set of laws from the rest of us.
The easy way to mitigate this specific problem wrt copyrights is to reform copyright law so that we no longer divert a grossly disproportionate amount of money into content companies and so that they don't file lawsuits that there is no hope of winning, but it doesn't really solve the larger issue, which is that the legal system is only really available and functional for those with the capacity to spend $10 million on lawyers at any given time. Unfortunately, it doesn't seem that we're going to resolve that during the lifetime of anyone currently living.
Also, why the hell is Getty charging for public domain photos? Are they not aware that people can use those without paying Getty?
No, because
> why the hell is Getty charging for public domain photos?
There is no amount of clarification there that allows Getty to charge for something. Either it's in the public domain, in which case they have no right to charge for use of the photos, or it's not, in which case they have no right to charge for the photos.
I'd wager that this is some sort of colossal business fuck-up that's not anyone's fault. Mostly because I can't imagine anyone so baldly stealing money.
Getty actively threatened anyone using the public domain images.
Here however it is clear-cut, the photos are not modified.
The question with Highsmith is whether she still holds the copyright or whether she put the pictures in the public domain. Answering this could be very interesting.
The other angle that I would expect to see come up is whether Getty can sue (or threaten to sue) over pictures that they clearly do not hold the copyright to. That seems to be a clear violation of racketeering laws. https://en.wikipedia.org/wiki/Racketeering
Ref:
* http://www.copyright.gov/help/faq/faq-duration.html#duration
* https://en.wikipedia.org/wiki/Public_domain "Works in the public domain are those whose exclusive intellectual property rights have expired, have been forfeited, or are inapplicable."
Of course it's also fine for someone to use Getty to locate a public domain image, and then acquire it for free from another source.
Getty sending copyright notices on works they know (or should know) to be in the public domain is a real problem.
Ulysses is in the public domain. You can buy it for $2. https://www.amazon.com/Ulysses-Wordsworth-Classics-James-Joy...
Getty literally told the photographer she had to pay a license for her own work posted on her website. She didn't acquire it from Getty.
You can acquire a public domain ebook from somewhere else for free or you can pay 99c to acquire it from Amazon. But either way, you're not paying for a license to copy it.
http://www.gutenberg.org/ebooks/4300.kindle.images
I assume that the 99c one comes with some feature other than the text - e.g. convenience, formatting, something else.
The 99c is not a licence fee for the text of Ulysses, and if Amazon tried to sue me for having the Gutenberg version on my Kindle, they would get the Arkell v. Pressdram response.
Regarding your second point: Getty is a content distributor. When it comes to stock photos, many designers just go straight to Getty or one of its large competitors to browse for stock photos. The designers aren't going to know which of those photos are available freely and which are not. (By analogy, this is why you when you want to watch a movie, you immediately find it to rent on iTunes, as opposed to spending twenty minutes finding a decent pirated copy.)
That's not what public domain means.
> The term “public domain” refers to creative materials that are not protected by intellectual property laws such as copyright, trademark, or patent laws.
http://fairuse.stanford.edu/overview/public-domain/welcome/
> Works in the public domain are those whose exclusive intellectual property rights have expired, have been forfeited, or are inapplicable...The term is not normally applied to situations where the creator of a work retains residual rights, in which case use of the work is referred to as "under license" or "with permission".
People are lazy and will pay money so they don't have to think about licensing. If you are a graphic designer working in an ad agency and you have a choice between "go online and download a PD work and not be sure" and "pay Getty $50 and if there's a copyright issue, you can tell your boss that you paid Getty", which do you do? Pop it on the corporate credit card is the easier option.
It's the same reason big companies were suspicious of open source for a long time. And some still are.
I guess this depends on local legislation, but in most jurisdictions, I think this would be called fraud.
So yeah, just selling it on their website is probably fine, but extorting money out of people who have equal right to use the image is probably not.
I guess someone else could just try to free-ride off them by not doing the research, but honestly the legal commitment ("bonded open source") would be the valuable and expensive part.
From the comments >The Adventure of Tom Sawyer is public domain. Getty is publishing then the book and attacking anybody who uses the name Tom Sawyer in anything. They got caught when they filed a DMCA complaint against Mark Twain for having the book on his personal website.
That's fraud and misrepresentation.
But rather Getty is Claiming Copyright over the photos, and are Issue Cease and Deist letters to anyone they find using the photos that did not pay Getty for a License.
So regardless of the status of Public Domain or not, Getty is not the Copyright Holder, and should not be issuing DMCA, or other Demand Letters claiming they are.
> "Highsmith says she never abandoned her photo copyrights" -article
Yikes, that seems like a big misunderstanding. I would guess the LOC has a process to transfer the ownership of photos. If so, she probably signed away her copyrights without realizing it (???)
Either way, what Getty is doing is terrible and wrong. I don't see how she can sue for copyright damages if she doesn't have the copyright, but I hope they're punished for it. I'm not a lawyer, so someone please correct me if I'm misunderstanding something here.
https://www.law.cornell.edu/uscode/text/17/1203
It's a really big deal that this obscure section in DMCA (1202/1203) can be used for this, and I believe she has a good case.
The article was not clear on where Getty got the photos. If they did not get them from the Library of Congress, they might not have known that they are (purportedly) public domain.
• Getty buys images from many people. Perhaps an unscrupulous individual bundled up a bunch of images from the library of congress, misrepresented their ownership, and sold them to Getty. (Bonus dickery to use a false identity so Getty can't find you to try to sue you back.)
• Getty could have bulk loaded up on hoards of public domain photos to sell to people looking for images. There's nothing wrong with that, curation has merit. But at some point they might have missed setting or checking the bit that says "we don't own exclusive rights on this one".
• Or the pitchfork and torch mob could be right.
Yes, it's fine they might have had a computer glitch that mislabelled things, yes they may have bought a batch of images with dodgy copyright/origin information.
But, at the point at which they instructed personnel to issue a demand notice for infringement there is no excuse for not first checking they actually owned the rights to the images in question. The deliberate avoidance of checking their rights prior to their negligent infringement demand - for a company whose raison d'etre is handling copyright and licensing of image - is well beyond the bounds of criminality. Ignoring the information presented to then that they were acting tortuously, makes for reckless infringement (at best) on a massive scale and should really be leading to personal criminal prosecutions for those who oversaw (or neglected to properly oversee) the creation of such systems.
The relevant investigatory powers should be inside Getty now looking to see if there is evidence that this was a known commercial practice of Getty to fraudulently misrepresent their ownership of other's copyright.
'Examples for works actively dedicated into public domain by their authors are reference implementations of cryptographic algorithms,[6][7][8] NIH's ImageJ,[9] and the CIA's The World Factbook.[10] The term is not normally applied to situations where the creator of a work retains residual rights, in which case use of the work is referred to as "under license" or "with permission".'
The prohibition on copyright protection for United States Government works is not intended to have any effect on protection of these works abroad. Works of the governments of most other countries are copyrighted. There are no valid policy reasons for denying such protection to United States Government works in foreign countries, or for precluding the Government from making licenses for the use of its works abroad.
35. Since approximately 1988, Ms. Highsmith has made her photographs available to
the public for free through the U.S. Library of Congress, thereby exercising her exclusive rights
under 17 U.S.C. § 106 to distribute copies of her copyrighted work to the public by sale or other
transfer of ownership, and to authorize others to do so
(Not a lawyer).
[0] http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?articl...
This isn't a thing. There's no well-defined mechanism by which that could be done.
Orphaned works (abandoned copyright) can be subject to re-copyrighting by another party from what my laymen's understanding of copyright law is.
Instead she specifically stipulated that these photos are in the public domain and so Getty is obviously operating under bad-faith principles.
But then, unfortunately, this could be filed as a simple DMCA notification error and would not entitle the author to 150,000$ in damages per work. She will receive only an apology. And this is how Getty gets to strongarm the less rich artists and only have to say "sorry" when they can't win.
One is an explicit act (moving works into the public domain) and the other is simply a sin of omission.
Such insolence should be punished hard.
It shows their #1 priority was collecting as many pieces of work as they could, and their #2 effort was reinforcing their payment system (a la threats if you don't pay).
No where in that equation was the artist, the art itself, or any related interests. They only cared about being the middleman and acted like it.
It's okay that Getty lists high quality images that are public domain or restriction free as part of their search engine, but it is beyond ethically wrong to charge money for them.
> but are falsely and fraudulently holding themselves out as the exclusive copyright owner (and suing others)
So the federal government should be suing them instead of the photographer? It doesn't seem like the copyright office has its own enforcement agency, so it probably would be up to the photographer to start a proceeding, since nobody else will.
This makes her attempt to get copyright damages to be a red herring which could undermine her entire case.
Therefore, I realize she has no claims, except the single one where Getty tried to sue her for using her own public domain images.
I understand why you assume she needs a copyright, but read the actual complaint and causes of action. Indeed she sues for copyright and DMCA, but asks for damages under DMCA. If copyright fails, it doesn't affect the rest.
[1] http://bravewords.com/news/deep-purple-ordered-to-pay-royalt...
http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?articl...
Getty was found by this Court to have violated 17 U.S.C. § 1202 within the last 3 years, and ordered to pay over $1 million in damages.
Because Getty has already had a final judgment entered against it by this Court under 17 U.S.C. § 1202 in the past three years, this Court may treble the statutory damages in this case against Getty.
If they're not actually public domain shouldn't she be suing the library of congress for misrepresenting the license?
Yes, if they're public domain Getty shouldn't be trying to enforce ownership but that seems their only misdeed.
Moreover, the photographer here certainly didn't use any "derivative" from Getty. So even if Getty could claim copyright on their "derivative", they cannot justly claim copyright over the original.