Jerry Seinfield showed us that a TV show about nothing could be worth something, like more than 3 Billion (with a capital B) dollars. That’s the syndication revenue from 1995 to 2014 as referenced here. We now see a lawsuit, Carol M. Highsmith v. Getty Images (and others including Picscout which Getty owns) seeking one Billion (again with a capital B) dollars for copyright infringement. And get this, the suit is based on the use of images she gave to the Library of Congress to be used for the benefit of the American people via the public domain. She appears to have never made a penny on these images, never intended to make money but rather was using the images in connection with a non-profit foundation she had created. She was according to the complaint filed with the court, collecting nothing. You can and should read the complaint here.
Ed has seen all of the legal and factual issues at play in this case in many other cases. What is particularly notable here is that this is the first case he has seen where ALL of these apparent transgressions were committed in a single case. The fact pattern is almost too good to be true for the plaintiff/photographer. This is to a lawyer very much like it would be for a person who hasn’t had a decent meal in months setting his/her eyes upon an endless Las Vegas buffet.
Here’s the story according the papers filed in court thus far:
Getty, seeing that the subject images had been placed into the public domain via the Library of the Library of Congress, started licensing them to third parties and charging fees for so doing in the same manner as they license materials submitted to it by its contributors. This is hardly the first time Getty has licensed out and charged customers for images that could have been used without charge, as they we in the public domain. For some period of time this worked out fine for Getty which collected an as yet undetermined amount of money.
Then one day – and you just can’t make this stuff up – Ms. Highsmith gets a demand letter from Getty saying she owes Getty a licensing fee for using a “Getty” image they license to third parties and receive payments for such licensing. Big mistake by Getty. Problem is, they billed her for an image she created and formally donated with the assistance and participation of The Library of Congress for the public good, for public use and she retained the copyrights.
Ms. Highsmith has registered – we don’t know at this point whether the date(s) of registration entitle her to statutory damages – her images numerous times at the Copyright Office and while we won’t know for sure until this case goes to trial if these specific images are/were properly registered or not, we’re assuming from the court papers and surrounding facts that there is a good likelihood these images are all properly registered. In either case, it shows the value of images even if you give them away, as long as you retain ownership of the copyright and/or you maintain some control of the use of your images.
If you are careless with your image rights, you may find yourself lumped together with those great musicians from the ‘30s through the ‘60s who gave away their copyrights and/or publishing rights in exchange for a flat fee payment by some band leader or producer. During the height of the jazz age through the ‘60s, a single payments of as little as 25 – 50$ would serve to buy all rights to a given song “forever”. Note that in some cases the purchaser ie Duke Ellington or a record executive were actually well intentioned buyers giving a starving or addicted musician enough money to get through the week or month. Most such purchases however, were simply rip offs and the artists were taken advantage of. By the early ‘70s musicians got wise, hired their own lawyers and commenced protecting their assets – their songs.
This case is at its early stages and there will no doubt be a lot more facts to come out. It does contain/portray a lengthy menu of questionable acts and conduct alleged against the defendants. The case alleges as many “bad acts” as we would typically see “spread out” among three or more unrelated lawsuits.
- The failure of Getty and/or PicScout to make the slightest inquiry as to the ownership of the images before pouncing on the alleged infringer;
- The number of other agents/sub-agents working in concert with Getty who similarly had no knowledge of the source or provenance of the images they were licensing;
- The issuance of a notice letter before doing any due diligence to determine whether sending such a letter was legally justified or sent in “good faith”;
- Getty (and other defendants) adding the images to their inventory/archives and marketing them as if a third party needs a license from Getty to employ the image when no such requirement exists;
- That Getty was an authorized agent of the photographer when in fact no such relationship exists/existed;
- One or more defendants slapping their own name on the image as if they/it was the creator or copyright holder when in fact they had no right to affix their name(s) at all;
- Getty self -promoting by holding itself out as representing a notable photographer. This is akin to a Hollywood agent falsely representing that he/she represents Beyonce, Tom Hanks and Will Smith in an effort to get other entertainers to sign on with him/her;
- The accusation that the creator of an image is also the infringer of that image. (“Yes” we have indeed seen that scenario before. We have also seen a licensee accuse a photographer of ripping off a photo from an ad which illegally had used that photographer’s very own image without consent or payment)
It bears repeating that there is no bullet point above nor anything contained in the complaint that we have not seen before in some other case many times. This case however, contains so many claims from soup to nuts all rolled into one claim that it bears following. The filing of this complaint is likely just the beginning of this saga. We will stay on it for you.
Regardless of how this case turns out, and we believe this will be news for a long time to come, for the love of your family and all you hold dear, register your images and protect yourself. Register even if you’re not licensing your images for fees or at all. We’ll keep saying this until we’re blue in the face.