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Comment by praestigiare | Hacker News Reader

In the first listed incident, Getty sent a takedown notice over a public domain image. This is fraud, just as clearly as the scammers who call elderly people and tell them they need to pay some fake fee or bill they didn't know about.

People in this thread keep claiming that because it is public domain, they can do whatever they want with it including license it, which is not true. They can certainly sell it, but a license is a legal instrument that grants usage rights, and Getty cannot grant such rights. To claim to do so is fraud.

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I was about to ask: doesn't licensing imply the power to enforce exclusive ownership of some sort, making the claim one can license public domain works misleading if not fraudulent?

Follow-up question: with that in mind, if this is true, how did Getty Images manage to win these lawsuits then?

It looks like most of the previous lawsuits were thrown out because the private entity suing didn't have legal standing to bring such a suit. From later in the article:

> It seems more like something the FTC or state Attorneys General could go after instead.

Fortunately many states have unfair and deceptive trade practices acts that provides standing, attorneys fees, actual and exemplary/punitive damages. Here is a somewhat dated pdf of each state's UDAP laws https://www.nclc.org/images/pdf/udap/analysis-state-summarie...

The article is a steaming pile, written by someone who has no idea what's what.

The previous case had standing as an issue because the individual in question was not hurt by the specific alleged fraud. This is not the case in the current litigation. The current litigation is seeking class certification for everyone that has paid for licenses on public works.

The article additionally ignores a number of heads of liability which are claimed in the pleading (consumer protection, unjust enrichment).

It's notable that fraud or fraudulent misrepresentation isn't claimed directly. I expect they might amend to add that as a fall back once they get better counsel. Instead they've claimed it's a RICO violation for a pattern of fraud amounting to racketeering. Ambitious big dollar claim, likely hoping to ratchet up a settlement amount but it's not clear it'll work out. They're currently represented by a personal injury lawyer who doesn't seem to have much background in the field, and I believe they've left off direct fraud claims due to the cost implications (I don't know know the RoP in the jurisdiction so the cost note is speculation on my part).

That's right. While you can sell a public domain image, you cannot claim that you own the copyright for it.

What about transformative works?

Disney was built on public domain stories after all.

Ooh, ooh I got this one. Identifying and acquiring compelling public domain motion picture works and then creating copyright-eligible derivative works is my full-time job.

A derivative work is a work based on or derived from one or more already existing works. Common examples include translations, musical arrangements, motion picture versions of literary material or plays, art reproductions, abridgments, and condensations of preexisting works. Another common type of derivative work is a “new edition” of a preexisting work in which the editorial revisions, annotations, elaborations, or other modifications represent, as a whole, an original work.

To be copyrightable, a derivative work must incorporate some or all of a preexisting “work” and add new original copyright-eligible authorship to that work.

The copyright in a derivative work covers ONLY the additions, changes, or other new material appearing for the first time in the work. Protection does not extend to any preexisting material, that is, previously published or previously registered works or works in the public domain or owned by a third party. As a result, it is not possible to extend the length of protection for a copyrighted work by creating a derivative work. A work that is, or has fallen into the public domain, that is, a work that was never or is no longer protected by copyright, is also an underlying “work” from which derivative authorship may be added, but the copyright in the derivative work will not extend to the public domain material, and the use of the public domain material in a derivative work will not prevent anyone else from using the same public domain work for another derivative work.

agree that this is a sleazy business practice, but (and not mentioned here, also, not a laywyer but), in music for example, there are typically 'artistic' rights and 'mechanical' rights - e.g. BMG can have the right to duplicate the recording of your song but not to record someone else performing it, or vice-versa where they cannot reproduce your recording but can record others performing it.

There are also nebulous cases involving sampling - some decided in favor of the one sampling, the others decided in favor of those who were sampled, depending on the particulars of the case / district / judge, etc.

I would suspect that getty is taking the public domain image, tweaking the file slightly (perhaps even in non-image related metadata), and thus creating a 'new work' to which they can make some sort of claim about.

so, while i think you are correct in that the 'visual image' (e.g. the visual object representation) is entirely in the public domain, the 'image' (e.g. the actual file) that they actually distribute is not, because they have modified it somehow and 'added value', etc etc etc. then, enforcement just becomes a fishing expedition. if you did your homework and used the public domain one and can refer to it, they don't press. if you didn't, and don't catch it, they have a reasonable claim/plausible deniability of mis-attribution, and you pay. easy (but unethical) money to them.

shady, dubious, etc, but probably not out-and-out fraud in the 'illegal' sense. still not good otherwise because it does facillitate them gaining market share (by having a bigger product base / collection) which in turn creates a cyclical effect/ barriers to entry/ etc (just like BMI/ASCAP and music, for example)

Sampling is at least nominally a creative act, where changing the resolution for example is not. You can gain copyright for a collection of say “Dog Photos” collected from public works. But, you don’t gain anything over individual photos in that collection only over that specific listing.

I agree, it is thankfully somewhat difficult. One thing the US Copyright office pointed out to me on a request a number of years ago was that any changes need to be themselves copyrightable to have any influence on the status of the final work. Little snippets of text/titles are for the moment still not copyrightable, changing hue or saturation etc would probably not pass the smell test, nor would any batch processing, purely technical changes like resolution or file type, etc. Unfortunately the larger players with standing are unlikely to push for these rulings so it is hard to find established case law.

Fun fact: in music, anyone can avail themselves of a compulsory mechanical license to record someone else's already-recorded song. As the songwriter, you only have a right to specify who may release the first recording. This is how cover songs can exist with minimal effort of rights acquisition.

I wonder what the IP world would be like if this model, or some variation, were more widely applied?

While probably not relevant here, collections of public domain images can be copyrighted apparently: https://fairuse.stanford.edu/overview/public-domain/welcome/

That's interesting, but it makes sense. You're not copyrighting the images but the manner they were collected together.

Is that settled in a court of law?

It isn't at all obvious to me that is the case.

The linked article explicitly disagrees with that interpretation - because Getty doesn't make any claim what the license is: Getty and/or Getty US offers to let the user “Purchase a license” to a NASA photo of Saturn for $499.00 with “standard editorial rights”

Techdirt makes the point: it can't sell "copyright licenses," as that is a misrepresentation over the rights that Getty Images has -- but if it wants to try to get people to pay for stuff that is otherwise available for free, that's Getty's prerogative. and that seems a reasonable interpretation.

Indeed and other interpretation would imply some kind of negative copyright exists over the work (because it is restricting what you can do with it), and elsewhere in this thread it is pointed out that there is precedent for avoiding that[1]

Adobe also claims that Fonts are Software. Because most Fonts wouldn't be copyrightable beyond the Name of the Font because they lack innovation. Software, on the other hand, doesn't require innovation.

Shouldn't the letter forms in the font be copyrightable? How are those different from a (copywritable) drawing?

Not everything is copyrightable. You certainly can't draw a circle and claim copyright infringement to any other circle. So it depends on the Font. Is it really copyrightable if you take a public domain typewriter font and convert it to a sans serif font. I don't think it is enough.

Most (good) fonts—even seemingly simple ones—take months if not years of work to build. I don't think your circle comparison is apt.

I don't see how this is relevant.

> Is that settled in a court of law?

Yes, of course.

As said a licence is what the owner of some exclusive rights issues to grant someone else some of those rights.

> Yes, of course.

In a particular test case?

The whole article is all about how this layman's intuition about the licensing situation in this case is not how you'd think.

> These images are in the public domain. No one is required to pay Getty and/or Getty US a penny to copy and use them. And Getty has no right to sell copyright licenses for them, as it has done and is doing.

> The first sentence is true, the second, not so much.

What do you know that the author doesn't? Is there a particular test case that settled it?

There doesn't need to be a test case, because it's written in the law. A license is defined as a "transfer of rights", you can't transfer rights that you don't have.

But that's exactly what the article is saying isn't as intuitive as you think it is.

> it's not at all clear that it's against the law

The author (what's his authority, by the way?) agrees, though:

> Well, it can't sell "copyright licenses," as that is a misrepresentation over the rights that Getty Images has -- but if it wants to try to get people to pay for stuff that is otherwise available for free, that's Getty's prerogative.

His point is that he does not think that Getty was selling licences. However Getty's past behaviour (and I'm sure their own website since I'm sure that the T&C and the licence are attached to any sale) suggests that this is exactly what they were doing:

> The first one was brought by photographer Carol Highsmith, who sued Getty after Getty had sent a demand letter to her over her own images, which she had donated to the Library of Congress to be put into the public domain.

And yes, knowingly selling licences for rights you do not have is against the law. If you think it's not then I'm happy to sell you a licence to fish in the River Dee...

So can you point at the precedent, please?

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