Photographs are not only worth a thousand words; especially when 18,755 photographs are protected by U.S. copyright law. With the Internet, it’s easy to forget that each photograph is someone’s copyrighted material. But the photographer who pressed the button owns the copyright even if s/he made the photographs available to the public for free. Getty images is about to learn that licensing a free to use image without the permission of the owner may be very expensive.
Carol M. Highsmith brought this copyright lawsuit on July 25, 2016 (Highsmith v. Getty Images (US), INC., et al, Case No. 1:16-cv-05924) to the New York Southern District Court.
Ms. Highsmith is a distinguished American photographer whose work has been featured in more than 50 books, movies, on U.S. postage stamps, as well as television coverage by The Washington Post, The New York Times, The Washington Post Magazine, Time, Life, Smithsonian, and CBS News. Getty Images is a $3.3 billion company whose primary business is buying and selling copyright licenses for photographs, videos, music, and other media. It represents over 200,000 photojournalists, content creators, and artists around the world.
Ms. Highsmith has made her photographs available to the public for free through the U.S. Library of Congress (see example below), thereby exercising her exclusive rights under 17 U.S.C. § 106 “to distribute copies (…) of her copyrighted work to the public by sale or other transfer of ownership”, and to authorize others to do so.
At no time she “(…) intended to abandon her rights in her photographs, including any rights of attribution or rights to control the terms of use for her photographs, nor was it ever her intent to enable third parties to purport to sell licenses for her photographs, or send threatening letters to people who used her photos” (see §36 of the Complaint).
Picture: example of a false watermark claiming that Getty Images has some kind of ownership interest in the Highsmith’s photograph
In December 2015, Ms. Highsmith received a § 120 settlement demand from Getty Images accusing her of copyright infringement and demanding payment for displaying one of her own photographs on her own website. She also learned that Getty Images had been sending out similar threat letters to other users of her photographs, and that Getty is purporting to sell licenses for the 18,755 photographs appearing on its website.
It’s important to note that Getty has no contract or other agreement with Ms. Highsmith related to the Highsmith Photos and has not otherwise obtained any license, permission, or other grant of rights in the photographs. On top of that, nowhere on its website does Getty identify Ms. Highsmith as the sole author and/or as the copyright owner of the photographs.
Consequently, Getty Images is “not only unlawfully charging licensing fees to people and organizations who were already authorized to reproduce and display the donated photographs for free, but are falsely and fraudulently holding themselves out as the exclusive copyright owner (or agents thereof), and threatening individuals and companies with copyright infringement lawsuits that Getty Images could not actually lawfully pursue” (emphasis added; see §7 of the Complaint).
The U.S. Digital Millennium Copyright Act (‘DMCA’) provides for certain damages when a work is infringed. If the infringer has removed the copyright management information (‘CMI’), (such as the title and other information identifying the work, name, contact information, or copyright notice) from a photograph in an attempt to facilitate or conceal its infringement, the infringer may have violated the DMCA. Section 1202 (a) prohibits the false copyright management information and section 1202 (b) prohibits the removal or alteration of copyright management information.
By providing and distributing false CMI for the Highsmith’s photographs and intentionally removing or altering the same CMI, and knowing or having reasonable grounds to know that doing so would induce, enable, facilitate, or conceal an infringement, Getty has violated the DMCA.
As a result of these 18,755 separate violations appearing on Getty’s website, Ms. Highsmith is entitled to recover statutory damages of not less than $46,887,500 and not more than $468,875,000 as provided in the DMCA (17 U.S.C. § 1203(c)(3)(B)). Because Getty was found by this Court to have violated 17 U.S.C. § 1202 within the last 3 years, this Court may treble the statutory damages (i.e. increase up to triple; 17 U.S.C. §1203(c)(4)) accounting for well over one billion dollars.
Using an image without looking for the copyright holder or obtaining the proper permission to do so can result in legal violations writes Getty Images on its website. That’s exactly how Ms. Highsmith responded with a one billion dollars lawsuit when Getty claimed license fees over alleged copyright infringement of Ms. Highsmith’s photographs on her own website.
Stay on the right side of copyright law, always check photograph ownership and obtain permission, in the form of a license or otherwise, before using photographs whether on your website, products, communications, or elsewhere.
