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.
There's nothing unfortunate about it. It would set a very bad precedent if content in the public domain, freed from copyright law, would still be subject to arbitrary usage limits.
If you want to release something for free with conditions, use other licences like Creative Commons instead.
> would still be subject to arbitrary usage limits.
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.
Public domain is special. You free yourself of all ownership which means that somebody else can pick it up and relicense their distribution of it, including saying you cannot do things with it. I emphasise "saying" because that's pretty much all you can do unless they know they're the only entity distributing it.
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.
Putting copyright matters aside, there is an issue of misrepresentation.
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.
I think cases like this is why public domain does not exist in Sweden, nor can you disown Copyright, only “commercial Copyright”. What always remains is “moral Copyright”, which can’t be used for much except that it’s some sort of attribution to the original author which always remains.
One of the worst things about the modern world: when you automate a crime and do it ten thousand times it becomes likely the justice system will simply ignore you.
And don't forget there exist people that will literally try to defend this behaviour by claiming it is "too hard" (doesn't scale, or whatever) to do it right.
I disagree on the fundamental point that this was misrepresentation. They had every right to enforce a claim, they were just stupid to assume others wouldn't have their own claims.
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.
I take an amazing photo and give it to you with all rights to redistribute and sublicense it as you wish. You choose to redistribute it under a restrictive license for cash. As far as you know you're the only person selling this photo.
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.
>I take an amazing photo and give it to you with all rights to redistribute and sublicense it as you wish.
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 never were granted the rights to sublicense it.
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.
The image was put in public domain. No further exclusive rights are required to sublicense it. You are allowed to pick work from public domain and sublicense it if you want to.
The whole example was about having exclusive rights so anyone that had the image must be infringing. That presumption is gone once the image is in the public domain.
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.
Since they were not given exclusive rights, how could they know that whoever used the picture was infringing their rights and had to pay them a license fee? They didn't.
That is not how grammar works... . The point is about exclusive sublicensing. Of course, they are allowed to sublicense it, nobody ever questioned that, but that has nothing to do with the discussion.
You can't have a sublicense for something in which no licensing rights inhere to begin with. I think you understand this very well and are choosing to pretend otherwise.
IANAL, so honest question - is that actually true? Is it legal to sell a license to a public domain work? Is it OK to fail to tell the person you're signing the contract with that they don't need 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.
> This mistake happens with all sorts of content available from multiple areas.
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.
In your other comment (too deeply nested for me to reply to) you mitigate their actions with the quotation:
> 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.
No. I know we're supposed to assume that all HN commenters have read the source material, but did you?
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.
That's why people who specifically do not want their art to be exploited by big corporations like Getty Images should never use the "public domain" license period. It's ripe for abuse. Consult a lawyer and create your own special license, or use creative commons.
> 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.
How about we just forbid copyright claims over public domain material, instead of shifting the burden from the large licensing corporation to the individual creators and consumers? In other words, change the law to make Getty's behavior illegal.
There no such thing thing in law as a "public domain license". That's part of why CC0 was created, because public domain is an ill-defined concept, not a license.
My reading of this article is getty was claiming they own the rights to the photos, and requested payment from the photographer. Because they didn't have a record of her paying them... Despite the fact she didn't get it from them.
Yeah, that's my reading too. Getty treated this as if it were exclusive and that they were working as sole agent for the owner. They do this for lots of the things they distribute.
But PD is incidental here. Getty could have legitimately had a exclusive license and still incorrectly gone after its creator.
Getty treated itself as the state and the work as a government royalty subject. (government royalty subject is what your work becomes if you do a work-for-hire for a continental European government, i.e. the government becoming the copyright owner)
In the USA all works of the government are considered public domain. The idea of a public copyright is a legal contradiction in terms. So it's perfectly legal to take PDFs of official government publications and republish them if you think there's a market for it.
> In the USA all works of the government are considered public domain.
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.
Um, no. You can't take a public domain image and claim you own it and are thus due licensing fees, that's both immoral and .. save this ruling which I'd hope would be over turned, tout de suite .. should be illegal.
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.
>Um, no. You can't take a public domain image and claim you own it and are thus due licensing fees
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.
>Getty took public domain images and added arbitrary usage limits on them by (fraudulently) claiming to be the sole copyright holder.
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.
Your name is diffeomorphism, so I assume you like math, and care about accuracy.
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.
If they are public domain you can do with it whatever you want. Also republish them, charge money for it or limit usage. That's the point of it. So everything is fine.
BUT, if someone prints the images and ignores any usage limits and then gets sued you might just get a jail free card because you can claim that's anyway public domain.
> Also republish them, charge money for it or limit usage
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.
You are dead right but I wonder if the article is badly representing the story or her lawyers were bad because Getty won the lawsuit anyways. Perhaps she did download the photo from Google images or something and it did have Getty watermark in it when she used it. Otherwise I see this as a slam dunk against Getty.
From the representation of her story in the article, it hardly seems like Getty has caused her a billion dollars in damages. It's a slam dunk that Getty did something wrong, but that doesn't mean that they necessarily owe her any money.
I'm not entirely sure how moral rights of authors operates under US law, when or whether such rights extinguish, or what the penalties for infringement are. Under EU copyright, this is a quite strong provision.
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;
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).
When she donated the works, she relinquished all copyright, and the works moved into public domain. These images are for all intensive purposes not owned by anyone, and anyone can do what they see fit with them.
(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.
I know pretty much nothing about copyright law. Are you saying that the US Library of Congress or the photographer released them under the wrong kind of license?
I'm still not clear how being able to sell them seems to mean they can demand licensing fees from anyone who uses the image - effectively claiming they are the sole and exclusive rights holder.
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.
My guess why Getty won the lawsuit is because lawsuits are in order to grant damages and she wasn't able to prove monetary damages to herself as it was already in the public domain. Unfortunately there is very much law enforcement against entities falsely claiming copyrights, especially those that technically have no owner. It seems hard enough for you tubers who get claimed by copyright troll companies constantly and steal their advertising revenue.. or YouTube technically steals and res distributes to the copyright troll. Even those cases you won't see criminal charges or even civil or monetary charges unless the copyright holder wants to go to court. It's basic time scamming. Copyright trolls can claim 100 million videos in the time it takes one person to defend one of those claims. Basically every day these companies make claims that would take the combined lifespan of the entire world to defend against.
What about the bad precedent of companies like Getty trying to collect rents on public domain works? It's a two way street.
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.
1. Use bots to vacuum up as many images as you can online, and claim ownership.
2. Use bots to search for infringement and automatically send claim letters against them.
3. For any pushback, have a team of lawyers and clerks of various grades to deal with situations as they escalate. Push or capitulate after sizing up the opponent.
Most people either just want it over, or don't have the means to fight back for any length of time. The money you make from such a scheme would far outweigh the legal costs due to the scale of the automated income.
It would only become problematic if someone else started a rival company, at which point they'd need to set up an oligopoly agreement to avoid destroying one another with their bots.
They are not afraid of the law. In US civil lawsuits are expensive as hell. That's not the case in a lot of other countries where systems are in place to resolve conflicts, before a judge, at a very low cost.
The US system is based on common law though which is in the minority of every other countries remember.
Both systems have their place. Common law systems tend to favor what people culturally perceive as the law as opposed to what is actually the law. My examples would be jim crow murderers getting away with killing black people and juries not convicting them even though clearly they did. Also recently the Oregan militia in the US that I believe killed a federal agent in a firefight was found not guilty by a jury for things any judge would've said they were in a heartbeat.
Basically common law is good when the government is after you and your peers as a jury hate the government more than you. Civil law is better when it flat out comes down to a competent individual interpreting the law fairly quick.
I suspect you eventually go to jail on fraud charges.
Getty can probably argue that they made a mistake when classifying the image. But this argument only works if you have rights to a lot of legitimate works.
It would more likely be fines, especially once you're big enough to pull strings.
It wouldn't be too much trouble to add "copyright checker" code to the bots that's good enough to provide a fig leaf for your defense. Automated large-scale systems make mistakes all the time, after all. Pay the fines, do the minimum work necessary to comply with the court order, rinse and repeat, and keep your PR team on standby.
Fair enough, maybe I should have said that in theory they could go to jail for fraud.
In practice, it's unlikely that even a dedicated scam operation gets the attention of the authorities.. it rarely happens, probably because there are more serious crimes to prosecute.
People do this for small business owners and ADA compliant website.
The Department of Justice (DOJ) has specifically stated in rulings that websites should be designed so they are accessible to individuals who have vision, hearing, and physical disabilities. There’s a growing body of case law where the DOJ required companies to provide an ADA compliant website and levied hefty penalties when sites failed to measure up.
How does the first step work, legally? What does it mean to 'vacuum up' (web scrape?) images and claim ownership... I mean, is this a fundamentally false precedent that you are describing, or is there some legal basis for 'claiming' images that you (meaning, a business) previously have no connection to, but simply want to 'own'?
That's what I mean.. if it's in public domain doesn't that mean it is free for anyone to use? How does someone legally then claim ownership?
Or are they just 'claiming' without any truthful ownership? So then if they make a DMCA request on it or something, companies will comply by default to be on the safe side?
> As for the now-infamous collections letter, Getty painted it as an “honest” mistake that they addressed as soon as they were notified of the issue by Highsmith.
I'd like to see the working on that. How did the mistake happen? How will they stop it happening again? Are they regularly emailing people threatening emails about Library of Congress photos?
I ended up mediating a silly situation between Getty and a client about six years ago.
The client is a manufacturer of consumer goods, mostly kitchenware. They own a boatload of brands. In 2014 or so they did a mountain of photography to reposition an existing professional cookware brand for consumers - lots of lifestyle shots, as well as your usual product shots. They made the images available in an online, access controlled library for their customers to use in their marketing.
About six months after this branding pack is made available, we hear from the client that their customers are getting large payment demands (tens of thousands, in some cases) from Getty for the images that the client provided.
We approached getty on the client’s behalf, as they were just bewildered and didn’t know where to even begin.
It took about two months to sort out - we had to repeatedly explain the situation, while they argued that they owned the images, and had to go through a lengthy process proving that the client owned the images. Burden of proof was totally on us, and we were getting nowhere fast. While looking at some of the supposedly infringing images, we noticed an incredibly faint watermark embedded in one of them that specified the site that the image had been rendered on - an unprotected image library on one of the client’s customer’s sites.
From here, it transpired that Getty had hoovered up everything in that library, assumed rights, and was selling it. Once we started pushing the tack that they had broken several laws by accessing a computer system that was not intended to be available for them to access, and had stolen images from there, the whole thing, along with all of the images on Getty from that library, vanished. They never even responded.
Our takeaway here was that Getty use bots to find large collections of unique high-res images on sites that aren’t explicitly copyrighted, and just take them, on the odds that they’ll get away with it.
We encouraged the client to sue them for damages, but they were so relieved that the problem had gone away that they just wanted to move on.
If your story is true frankly, then it makes Getty Images a bunch of criminals, period. This is fraud and racketeering, no more, no less.
It's even worse than the "Prenda Law" story where lawyers were making money threatening people who downloaded porn torrents illegally and forced them to settle or be sued, because Getty Images does not own the content at first place, they stole it, literally.
This justice department isn't going to take any action against businesses of any sort, so Getty is pretty much in the clear on this. They might get in trouble in the future, but the end result is unlikely to be more than just a slap on the wrist (a few tens or hundreds of millions in fines) so there isn't much downside for them.
It's not illegal if a corporation does it after all.
I'm specifically having trouble understanding these two bits, please ELI5:
> that their customers are getting large payment demands
and
> Getty had hoovered up everything in that library, assumed rights, and was selling it
Does Getty specifically assert copyright that they don't have in these letters? Or is it more like a "You might be using an unlicensed image and that would cost you thousands, buy a license here"?
The whole thing sounds absolutely ripe for an enterprising legal firm and a RICO suit with the 3x damages.
EDIT: I'm struggling to find a copy of Exhibit A in the case, the letter Getty sent. Anyone have a copy?
>Our takeaway here was that Getty use bots to find large collections of unique high-res images on sites that aren’t explicitly copyrighted, and just take them, on the odds that they’ll get away with it.
While that is a distinct possibility, the more likely cause is that someone else is hoovering up high res images and are selling them to Getty.
Getty doesn't make their own photographs. It's basically a stock image assignment store. https://www.gettyimages.com/workwithus People upload their own images, Getty sells them, and then Getty gives the uploader a cut of the selling price. Getty has no way of knowing if the uploader is themselves falsely claiming copyright.
It wasn't legally on their client; a court would have required that Getty show they held copyright. During negotiations, though, Getty's lawyers can simply make whatever demands and threats they like.
No, they cannot. This is fraud. If I claimed I owned the Statue of Liberty and tried to sell it to you, it would be fraud, too, no matter if you eventually actually paid me money to buy it from me or not.
I wonder if you could send a dmca takedown notice to Getty and leave the burden of proof on them? Is that not how all of these companies play the game?
If they can automate scraping the web and sending out emails, they can automate a "we randomly found these pictures on the internet and shouldn't extort people for them" flag.
> We approached getty on the client’s behalf, as they were just bewildered and didn’t know where to even begin.
It took about two months to sort out - we had to repeatedly explain the situation, while they argued that they owned the images
They weren't bewildered. They knew exactly what they were doing.
Once there was no possibility of extracting money from your client, they relented.
My understanding is that public domain means no license, no nothing. So anyone can sell a copy of it( claiming copyright like in this case is a different story). A licensed piece is not in the public domain. As the creator you can dictate the terms of use, and you do so with a license which basically allows everyone to use the piece( or for certain use-cases depending on the license). Think of it as a hack: a licensed piece is still copyrighted, and will enter the public domain when the copyright expires( or the sun blows up, whichever comes first).
It releases into the public domain, where possible, and has a paragraph that comes as close as possible to the public domain in jurisdictions where that release isn't possible.
I think the idea in the referenced case is that a release to the public domain means that the author gives up all interest in the work.
Not to really defend Getty Images, which seems to be acting out of line.
the only way for all of this to work out (for all parties involved) is if there is another superpower nation with nuclear weapons with laws that punishes these sort of behavior and all the tech talent flows there.
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...