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.
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.
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.
• 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.
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.
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".