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.
They include:
- 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.
#1 by Vivian on July 30, 2016 - 1:48 am
Getty Images has cojones, and not in a good way! I am very interested to see how this case unfolds. One question, because I didn’t know you could give away your work and still retain your copyright – is “free for public use” different from “public domain?”
#2 by Jack and Ed on July 30, 2016 - 10:01 am
Hey Vivian,
Yes, as the copyright owner you can “give away” your work and retain the copyright. The confusion is in using the words “give away”. It not really giving it away, but rather licensing the work with very broad usage. Like including attribution with that broad usage (something Getty didn’t do on many occasions). Some of your rights in your copyright “bundle of rights” as the copyright owner, is the right of usage and distribution.
As a commercial photographer licensing my work, I could license my work for specific usages and for specific times, like billboard use for 18 months. Or I could license for unlimited usage for unlimited time (that of course would be an expensive license). While I can license for others to use, I still own the photo. Like leasing a car. You can drive it anywhere and do as the agreement allows, but you never own the car.
As far as the difference between “public use” and “public domain” there is as Mark Twain once said, the difference between a lightning bug and lightning. Public use simply means the public can use it, like a public area next to building, that is a park the building owns and controls, but allows public access and use. There are many parks like that in NYC. Public domain means the public owns it, not a private person or a company, like our national parks or the Lincoln Memorial (owned by us, the public). So a photo in public domain, like photos taken by NASA or the WPA, can be used for anything, including commercial use.
That’s why you see Dorothea Lange’s Migrant Mother image used often by companies for commercial use, such as a photo lab, with no problem . A photo “free for public use” might have some restrictions, like attribution. (BTW, a NASA (public domain) photo of the earth downloaded from their website, “suggests” attribution to NASA, but it is not required). Ms. Highsmith very much still owns her images, even though she allows the public to use it.
I hope that helps clarify a bit what can be a confusing area.
Jack
#3 by John Davies, England, UK on July 30, 2016 - 3:00 pm
Jack, having read the Highsmith complaint [the above linked court filings] it is worth noting that this is not a claim for infringement per se but a complaint about the lack of credit by Getty / Alamy (and there are adjunct related claims, to be sure). The whole of the claim and demand for damages is based on, and only on, breaches of the DMCA @ 17 USC §§1202.,1203. See in the filings: Complaint / Nature of the Case (Para 1)
Hignsmith could have brought these particular claims, in this form, even if she had never registered the images at all.
As to the question of “public domain” vs “public use” it would appear, without having sight of the agreement between her and the Library of Congress, that she likely appointed the Library of Congress to merely administer the copyright and issue no cost licensing of the works subject to authorship credit [pubic use], as opposed to abandoning the copyright [thus placing the images in the public domain].
In it’s entirety this is much much more like a claim, outside of the US, about moral rights than one of actual infringement. Technically it is not about the use of the imagers in and of itself, so much as the alleged bad behaviour of the defendants in other ways, including what might/ could even be styled as breaches of 15 USC [Lanham Act] in so much as the defendants were, in part and among other things, apparently making false statements of origin.
Had actual infringement been included, and assuming the images had been timely registered, the claim should have reflected a demand for the maximum statutory damages of US$150,000 per image [and that would have been in excess of US$2.81 Billion – with a capitol B] -PLUS- the additional DMCA claims approaching US$1 Billion – with a capitol B – added on.
Though in US law there is no particular mention of “moral rights” that is in fact what the rights are that arise from 17 USC §§1202, 1203, and, this case illustrates perfectly the need to exercise those rights by including the requirement for credit [carry-through identification of the author / rights owner identity] in licensing and asserting them when images are permitted to be distributed by any means, even if the author is giving away the actual use of the material for free. Not at all unlike a Creative Commons “BY” license arrangement.
#4 by Jack and Ed on July 31, 2016 - 7:05 pm
Thanks John for your comments and hello from this side of the pond. Ed is holding back commenting further until he sees the Getty response in court. He does say your references to the Lanham Act are likely not correct in this case. The issue is not about “lack of credit” but rather mis-attribution or “false credit”, a completely different animal.
As we and many others are saying, including you, this will be very interesting to follow in the coming months/years. As the saying goes : “The wheels of justice turn slowly, but grind exceedingly fine.” And this case will have a lot of small, fine issues.
Jack
#5 by Jack B. Quick on July 31, 2016 - 10:14 pm
“Yes, as the copyright owner you can “give away” your work and retain the copyright.”
Please see Exhibit B of the complaint containing the “Instrument of Gift” to the LOC which includes this language:
“I hereby dedicate to the public all right including copyrights throughout the world, that I posses in this collection.”
What effect does this have on her claim that she retained copyright ?
Do you think that the copyright ownership claim may not be rock solid which might explain why all her claims are based on DMCA ? That rights under the DMCA re CMI might survice even if a court ruled you transferred copyright ?
#6 by vanessa on July 31, 2016 - 11:30 pm
Hi Jack & Ed,
We are just learning the value of registering our images and have a couple of years’ worth of images to register (both unpublished and published from our company website and business Facebook page).
I have a question regarding the difference between registering images with the copyright office as an individual or as a business (organization). All of our model releases and client contracts are from our LLC and now DBA as of May. My husband who is the photographer and I are both the partners of the LLC. If we register the images under the LLC, what happens if we want to dissolve the LLC in the future? What do you consider to be the pros and cons for registering as a business versus as an individual.
Thank you.
#7 by Jack and Ed on August 2, 2016 - 10:50 pm
Vanessa,
Ed may have another opinion, but I register my images under my name, rather than my company. Otherwise my images are an asset of my company and is treated like any asset. I’d rather have the images in my name. There may other considerations and issues, so best to talk with your local lawyer, including estate issues.
Jack
#8 by Jack and Ed on August 3, 2016 - 9:38 am
We can’t fully and fairly comment until we have seen Getty’s formal legal positions as set forth in the legal papers. The complaint certainly does not read like a typical,straightforward, copyright infringement claim. In light of this we are reserving full comment until we see what defenses will be alleged by Getty. The apparent reliance on atypical claims is notable and noticeable and requires that we comment further with caution.
The statements we made in our article regarding stock agencies practices still apply. Rest assured that there will be much to follow and absent good cause, conclusions won’t be jumped to by us.
Pingback: The Highsmith vs Getty Saga Begins | A Photo Editor
#9 by Ed Greenberg on August 3, 2016 - 2:46 pm
Dear Vanessa: there is no one size fits all answer as to whether to register the images in the corporate name or in either/both individuals’ name. There are estate issues, debtor/creditor issues, whether there is pending litigation against one or more parties, is a divorce or bankruptcy filing in the offing? etc.
The ultimate decision ought be made with the cooperation of your attorney AND your accountant. The decision must be made in accordance with your family’s unique set of circumstances. Anyone who tells you that there is a single answer to this question ought be ignored.
#10 by Vivian on August 3, 2016 - 8:14 pm
Thanks, Jack!
#11 by John Davies, England, UK on August 5, 2016 - 5:08 am
There is another claim now in play, as we speak, formulated pretty much the same way as Highsmith. Zuma Perss, Inc v Getty
https://www.documentcloud.org/documents/3004304-Zuma.html
Again heavily based on §1202 statutory damages but with the added claim of infringement with, for the infringement claims, damages based on loss / profit. Attorney fees and costs are sought under the terms of §1203.
#12 by Ed Greenberg on August 6, 2016 - 1:39 am
For Jack B Quick: Clearly you are also nimble. Your questions show great insight and an ability to hear that which is silent in the complaint. (My guess is that you are a fan of Miles Davis)
In any event, I don’t have enough info as yet to provide any meaningful answers. I just don’t know yet. The complaint is drawn in a somewhat curious manner. It appears to lack some obvious allegations and claims BUT until I have a basis to think otherwise I am constrained to believe that the attorney who drafted the complaint knows the facts and the applicable law and wrote the complaint accordingly.
I will mention in passing that there are valid and binding methods by which one can transfer copyright ownership or alter copyright “status”. Not all attempts at so doing are valid. Some lack necessary filing requirements. Others are deficient due to ambiguity, mistake or lack of certain formalities. We will stay on it and when we can give an objective, intelligent reply – likely after seeing Getty’s papers, we’ll post it.
While I always root against stock agencies in this blog we strive for objectivity in our reportage and strive to label our opinions as opinions. Sort of like what the newspapers tried to do many decades ago.
#13 by Ed Greenberg on August 8, 2016 - 5:47 pm
To John: I have read the Zuma complaint. I will attempt to be diplomatic and uncharacteristically so reserved as dare I say it, sound like a proper Englishman. I am generally loathe to comment on the work of an attorney unknown to me on a case about which I have no personal knowledge of the events complained of. I have dealt with both Zuma and Getty but have never represented either of them. I know more about the practices of stock agencies inclusive of their creative accounting, appropriation of the rights and images of others and a laundry list of shenanigans. I have spent over one thousand hours of my life just examining stock agency statements and acquisition agreements etc. With that firm disclaimer in place and obviously subject to viewing additional materials, I must confess that I find the complaint to be quite odd.
No order is sought from the court to direct the immediate cessation if the complained of practice/acts. No photographer is named as a party or in the complaint. There are no allegations that Getty actually licensed any work to anyone. The claim appears to be that Getty copied thousands of images, altering the software/watermarks etc. in the process without any authority from anyone to do so. I have witnessed many strange and even malicious acts orchestrated by stock agencies but this one strains credulity.
While I have seen some bizarre copying scenarios, the unauthorized “out of the blue” copying of tens of thousands of images without a claim that any were licensed to a third party is just plain weird. The complaint lacks much of the usual yet important boilerplate. That Getty has purchased numerous stock agencies over the years is old news and until adjudicated otherwise such acquisitions were legal and benign so far as the courts are concerned. Corbis gobbled up numerous agencies and archives in the ’90s and beyond. None of those acquisitions were found to be illegal or improper. There is no law against buying your competition in the USA until/unless an anti-trust claim is made. To my knowledge no such violation or claim has been alluded to here and I am unaware of the Federal Government acting to actually block such acquisitions notwithstanding they it made some cursory investigations into the consolidation of the stock photography industry during the period of 1994 – 2006 (give or take).
Plaintiff’s attorney – again the gentleman is unknown to me personally or by reputation – sets forth a list of some of Getty’s acquisitions. Why he does so is at this point beyond me. What the catalyst was for the copying and altering of software is not discernible to me from reading the complaint. Whatever motivated Getty to allegedly steal tens of thousands of images would typically compose the “red meat” of the complaint. I can guess – but won’t – as to why individual photographers are not named as parties nor how Zuma has acquired the exclusive right to pursue this claim ie each and every photographer whose work was copied signed over their right to bring a claim to Zuma. If that is the case, then there are scores of photographers who acted with exceptional foolishness.
So John as of this writing and until I see more, i view the complaint as an oddity. I have never seen one quite like it save another drawn by the same attorney. It bears little resemblance to most complaints in copyright matters.
I don’t have the answers here as yet and trust all will be revealed in due time.
Now is not the time to engage in guesswork.
#14 by Jack B. Nimble on August 10, 2016 - 8:29 pm
Reading just the Zuma complaint and the attached form
of Zuma/photographer agreement (no prohibition on assignment + no change in control provision = you can get these agreements into whatever entity you want) and reading online: that Zuma had a deal with Corbis, VCG acquired Corbis, then Getty did a deal with VCG.
I would speculate the Zuma case is heading nowhere.
#15 by Jack B. Nimble on August 12, 2016 - 3:58 pm
ED: “The claim appears to be that Getty copied thousands of images, altering the software/watermarks etc. in the process without any authority from anyone to do so. .. this one strains credulity.”
ZUMA seems to be upset about the “covert” Getty deal with Corbis which is where I must assume Getty got the content but ZUMA doesn’t explain in its complaint how this deal breached the example ZUMA “Photographer Agreement.”
ED: “I can guess – but won’t – as to [1] why individual photographers are not named as parties nor [2] how Zuma has acquired the exclusive right to pursue this claim ….”
Then I will guess:
(1) photographers are not named as parties because they didn’t provide their Images to Getty nor otherwise breach their respective agreements with ZUMA;
(2) the agreement grants ZUMA “”the full and complete authority to make claims or to institute proceedings on Photographer’s name…”
Regarding the ZUMA CMI claims, the “typical” (as ZUMA refers to it) Photographer Agreement provides that “Images shall be credited to Photographer/ZUMA…” Getty does seem to enjoy removing and/or altering CMI. (Highsmith case)
#16 by Jack B. Nimble on August 12, 2016 - 4:03 pm
You don’t allow editing. I meant to write Getty deal (with VCG) concerning Corbis content.
#17 by John Davies, England, UK on August 13, 2016 - 7:46 pm
Ed, I never meant to, and didn’t, opine on the merits of the Zuma claims, either way. I only posted that to flag up the thing coming as it did hard on the heals of Highsmith and with a similarly novel formulation.
#18 by Ed Greenberg on August 15, 2016 - 7:20 pm
There are pluses and minuses to having litigated and dealt with many stock agencies over the years. One of the countless minuses, is that I simply can’t always name names, refer to certain confidential documents and discuss results.
I have for over a decade refused to accept any fee nor review any contract for a photographer even thinking of doing business with any one of about a dozen stock agencies. Why? Because I know how they work and that me, the Gambinos and a squad of Navy Seals are no protection against the contributor eventually getting screwed. I don’t want any of the blame for the inevitable.
#19 by John Davies, England, UK on August 16, 2016 - 4:57 am
LOL @ Ed
I was born and raised within rock throwing distance of NYC, though I have lived in England for many years. You don’t have to tell me to never take a knife to a gun fight.
#20 by Ed Greenberg on August 18, 2016 - 2:17 pm
Jack and I had a dear friend, Tom Batten (descd) who acted in film and Broadway for decades and with whom we played poker. He was in Crocodile Dundee II and frequently referenced the following line when presented by some other player with what appeared to be a winning hand, “You call that a knife? THIS is a knife”! Invariably a winning hand.
#21 by Vivian on December 26, 2016 - 3:35 pm
PetaPixel reported on November 22, 2016 that “Carol Highsmith’s $1 billion lawsuit against Getty Images has, for the most part, been thrown out of court.” I don’t like it – Getty should not be able to profit from images given by a still-living photographer to the Library of Congress for FREE use by the American people – but I am not surprised. No good deed…
#22 by Jack and Ed on December 28, 2016 - 10:41 am
Hi Vivian. She put her images into public domain, which means anyone, including companies, can do anything, including making money. I got a note from someone a few years ago, upset that a lab was using Dorothea Lange’s famous “Migrant Mother” photo to advertise their lab. The asked “How could they?”. Well, that image was done for the government’s WPA program during the Great Depression and is in public domain. You can download a file of the original negative from the Library of Congress, make prints, and sell them for whatever you want, and keep 100% of the money you get. That’s public domain.
Ms Highsmith put her images out their into the public domain, with no restrictions on use. She then can’t add restrictions after the fact, after setting the images free into the public domain. If someone wants to offer it for sale and people are willing to pay, then that’s capitalism. What Getty did by sending invoices for anyone using it, is scummy, because your use is just as legal as their use, but Getty offering the image for sale is within their rights. They did break some state laws and there was a settlement, but as most settlements we wouldn’t know what really happened. But Ms Highsmith did lose the biggest part of her suit which was copyright infringement.
To protect yourself and your work, we emphasize registering your work (critical) and licensing your work yourself (NOT through Creative Commons), rather than “sell” your images or give it away. The key is licensing your work with good paperwork, to protect it.
Jack
#23 by Anne on May 27, 2018 - 3:20 am
When a person signs a model release, what must you give them in return for it to be legal? Is giving them a print acceptable, or must it be something more? Must they take a copy of the release? Often, they say no thanks.
Thank you.
#24 by Jack and Ed on May 28, 2018 - 10:28 am
Anne, One of the big misconceptions about releases is that some people, including some lawyers, mistakenly relate a release to a contract. A release is not a contract and compensation is not needed. Can’t seem to say it enough, a release is a “release of rights”, and not a contract. The release template Ed Greenberg and I have in out The Copyright Zone Book, specifically does not use the word “compensation” or “consideration”, as many “standard” releases we see have. With that wording in your release, what constitutes fair compensation is a good question and can be a problem in court. If you license the photo for $50K, is a print fair compensation or consideration? My advise is to rework your releases without the word “compensation” or “consideration”. As far as them accepting a copy, the release states they received a copy, in other words one offered by you. I’d assume that’s enough, and if it’s not, I’m sure we’ll hear from Ed on this. Jack