The company said the suit was the result of several misunderstandings, and that they would “defend ourselves vigorously.” Highsmith had no right to claim misuse or infringement, said Getty, because she gave up that right when she donated her images into the public domain.
In late October, the courts agreed with Getty, basically destroying Highsmith’s case.
https://petapixel.com/2016/11/22/1-billion-getty-images-laws...
If you want to release something for free with conditions, use other licences like Creative Commons instead.
But that's not what happened.
The content was placed in the public domain.
Then the author was notified
> your company does not have a valid license for use of the image(s)
If you want to release something for free without conditions, it should not be subject to conditions by those who did not create it
Didn't the ruling achieve the exact opposite? Getty took public domain images and added arbitrary usage limits on them by (fraudulently) claiming to be the sole copyright holder.
Taking the images and using them for whatever is fine, taking them and then trying to forbid anybody else from taking them (the originals, not getty's copies) is not and unrelated to the license.
Of your copy or derivative work, not of the public domain one you copied. The fact that they tried to force their limits on other people using the public domain works is what is the issue here and is not fine.
> you might just get a jail free card because you can claim
That seems entirely the wrong way around. Getty knows it is public domain because that is where they got it from. The fact that they sue for damages despite this should put them in contempt of court and not me in a position where I have to defend myself.
The problem here was trying to enforce on something that was obviously non-exclusive. This mistake happens with all sorts of content available through multiple channels. Getty should have marked it as such on ingestion.
But PD is incidental here. Getty could have legitimately had a exclusive license and still incorrectly gone after its creator.
All works of the _federal_ government are public domain. The works of other governments may, or may not be.
Only the federal government. State governments can and do (automatically, just like other creators) own copyright to their works under US law.
> The idea of a public copyright is a legal contradiction in terms.
No, its not.
> So it's perfectly legal to take PDFs of official government publications and republish them if you think there's a market for it.
It often is not, even with federal government publications, because:
(1) Official government publications may include non-federal works that are protected by copyright with a non-sub-licensed permission from the copyright owner (including works created by government contractors.)
(2) Even though copyright may not apply, rules regarding use of government-owned trademarks, government agency logos, etc. may restrict your commercial use and marketing of government works.
(3) If your use isn't strictly limited to use within the United States, it may still fall afoul of federal government copyrights, because the US federal government can and does assert international copyrights to its works, its works are only copyright-free within the US.
Sure, mistakes happen. But I think someone in the business of licensing should be held to a higher standard and that there should be a punishment for false demands/false presentation of copyright.
The fact that they can threaten someone for thousands of dollars and then just say "honest mistake. You get nothing for your troubles" might be legal, but I am not convinced it should be.
The tactics used are questionable, but asking for $120 is at the softer end of the spectrum when it comes to demands.
The letter stakes their claim and then immediately —before any numbers mentioned or "threats" made— say "If we are wrong and you do have a valid license"... In fact, they make no threats of lawsuit. All inference there is from the LA Times.
IP licensing is hard. Enforcement is harder. This example is a very soft approach.
> If we are wrong and you do have a valid license
The crux of the matter is that this sentence does not make it clear that a licence may not be needed at all. In fact it seems to re-enforce the idea that you definitely do need a licence.
The appropriate sentence that they could have used instead is more like "if we are wrong and do not actually own the copyright", which is materially different from what they said. Of course, aside from that being a totally different meaning and implication, as others have said it is 100% Getty's responsibility to figure out what they do not own the copyright to.
A case that would be interesting would be one where Getty had represented that they were acting on behalf of an exclusive copyright holder, and where a third party had acquiesced to those demands, only to subsequently learn that Getty was not the rights holder.
This is about basic contract issues. Getty falsely represented themselves to be X, with the use of aggressive language, leading to a contract being formed based on invalid premises. If it is a pattern of practice, it starts to look like a RICO matter.
Now, if I claimed this seriously, most people would laugh me out of the room. But some might not and actually pay up. Especially if I threatened to sue them if they didn't pay up and the "I" was a big, well-known company.
What Getty does is not just muddy grey misrepresentation, it's outright fraudulent.
- They say it's copyright infringement in their letter. It is not.
- They say you need a valid license to use the image. You do not.
- They demand a license fee. Not a "you used our service to find and download this public domain work" fee. A license fee.
- There is no indication whatsoever Getty/Alamy had any role in how the photograph got onto the website of Highsmith's foundation. Given it's her own photograph, it's unlikely she used Getty at all. But they do not claim a fee for using their services anyway, they claim a license fee based on copyright law, which they cannot.
Highsmith gave up her copyright and cannot demand attribution or damages under the copyright law, so I agree with the court there. What she instead should have done is file a criminal complaint and a civil suit regarding the attempt to defraud her.
You see my photo being used in a national advert. The advertiser is not your customer. Again, you think you're the only person with the right to redistribute this photo, and infer that your rights to a licensing fee is being infringed.
As I say, they were stupid to treat this as if they had an exclusive license, but they had every right to redistribute under their license and ask for a license fee. Just as the recipient of that demand had the right to tell them go away.
This is not what happened. They never were granted the rights to sublicense it. It is in the public domain. They can use it, redistribute it, or charge you if you somehow use their services to do things with it, or even create derivative works which they then own. But they cannot relicense it or claim they own it, or represent the owner.
Now, the only thing I would let them bring forward as their argument is if they themselves were defrauded by somebody claiming ownership of the photograph. I see no indication that this is what had happened, tho.
This is not what happened. They were granted the rights to sublicense it. Placing a piece of work in public domain automatically grants others to do whatever they want with it including sublicensing it.
Happy now?
The problem isn't that Getty is trying to license an image, the problem is Getty is contacting people already using a public domain image and trying to get them to pay them money to use it.
That's sort of like me selling you a driving license - when you already have one, and I don't actually have any authority to grant or rescind that permission either way. I mean; sure... you will have the permission after the sale, but it's at least a pretty dubious construction.
I don't think false representation counts as a racketeering activity. Also, which defendant would the action be brought against? The CEO?
Like Facebook moderation, or Youtube complaints.
How do you differentiate the Getty Image distribution of it vs. the original public domain distribution?
> The problem here was trying to enforce on something that was obviously non-exclusive.
No problem here, only Getty Images acting in bad faith. They know very well how the photographies are licensed and are abusing their position to "threaten" people and businesses who don't know better. It's morally reprehensible as a business model, legal, but scummy.
This is a serious problem. If companies can take public domain images and claim them as their own that's going to seriously curtail the public domain. What benefit is there to the pubic in that, the balance of copyright would be entirely broken by such a ruling of it held.
Now claiming $1B? Not sure. But the sum would need to be a significant portion of Getty's global revenue to make sure they didn't claim they had ownership of other public domain works.
Yes, you can.
You would be wrong. And you would lose in court when attempting to extract those license fees. But the act of making such a claim is not itself something that can be sued over, because no one has rights to the photo once it has been released to the public domain, and thus no one has standing to sue.
The article states this is not the case.
"It acknowledges that the images are in the public domain, but still maintains that it has the right to charge a fee for distributing the material. “Distributing and providing access to public domain content is different to asserting copyright ownership of it,” Getty says."
They are perfectly within their rights to charge for distributing their copy of the material. Nobody claimed they weren't. What they did instead is claim exclusive rights of distribution over the the other public domain works as well.
So, yes what they say is perfectly true, but also entirely irrelevant.
You started with this:
>>Getty took public domain images and added arbitrary usage limits on them by (fraudulently) claiming to be the sole copyright holder.
They did not claim copyright as you stated. Now you've changed to this:
>What they did instead is claim exclusive rights of distribution over the the other public domain works as well.
You originally stated they claimed they were the sole copyright holder. They did not. Moving the goalposts or downvoting does not change your original claim is incorrect. Accuracy matters, in math and in public discourse.
Fine, they claimed they were the exclusive "distribution rights holder". And then argued that you don't need to claim copyright to distribute and sublicense PD works. Yeah, fine. But that is irrelevant. The "exclusive" is what is the issue and their comment does not address that at all.
You wrote "Getty...claim[ed] to be the sole copyright holder."
They did not. My first reply quoted this to show the difference between your statement and what the article stated.
Do you see that your statement is at odds with what was stated in the article?
I understand that Getty can license PD images through their own site. Legally this seems to be covered by caveat emptor and by the fact that Getty provide search and indexing services to users.
But trying to demand licensing rights for a PD image from users who have found the image through another channel[1] is a whole other thing, and seems more like a plain old monopolistic land grab, bordering on extortion.
I'm surprised - although not entirely, for cynical reasons - that the court didn't pursue this argument. "Mistakes were made" isn't really a mitigation here.
Besides, I'm not sure it's even possible to place work into the public domain under US law without a formal written waiver of moral rights.
[1] Including their own camera.
US governing law would seem to be 17 USC 106A, noting it applies specifically to visual work (as in this case):
Rights of Attribution and Integrity.—Subject to section 107 and independent of the exclusive rights provided in section 106, the author of a work of visual art—
(1)shall have the right—
(A)to claim authorship of that work, and
(B)to prevent the use of his or her name as the author of any work of visual art which he or she did not create;
https://www.law.cornell.edu/uscode/text/17/106A
Under 17USC106A(d)(1) the rights "shall endure for a term consisting of the life of the author.*
The 107 exemptions are for fair use, which would not apply to Getty's usage claiming exclusive rights.
The broader problem would seem to be that releasing works to the public domain cedes critical rights, most especially of enforcement against misappropriation or unsupported claims of copyright. Getty clearly might be (and per some comments on this thread are) engaging in little more than shake-down rackets based on specious copyright claims.
An attention-grabbing penalty for such behaviour seems warranted.
Apparently US courts see the sanctity of privately or corporately-owned property, but not the property of the public as a whole (public domain).
(this is where the Getty lawsuit should have focused, as they don't have the right to make claims to the images either, unless the work she published was copied from getty's servers which have lisc restrictions on them [which is a loophole that should be closed])
its unfortunate for the artist, but as others have said, she gave up all rights to the works by placing them in the public domain.
You can see the documentation stating she gave those rights up on the LOCs website (https://www.loc.gov/rr/print/res/482_high.html)
Please don't tell me the solution is better consumer education while corporations are allowed to keep lying about owning IP - that's just shifting the burden to those least well equipped to handle it and treating individuals like the aggregate of all consumers who are presumed to be fully informed about market conditions, a fallacy of division.