Getty Images has a bit of a well-deserved reputation as a giant copyright troll, sending all kinds of nasty threat letters to people who use the images that Getty licenses. And even though it’s showed some signs of adapting to the modern internet world, it hasn’t given up on its standard trolling practices. It’s also famously bad at it, often sending absolutely ridiculous threat letters.
But it may have sent one so stupid that it could potentially cost Getty itself a lot of money. That’s because it sent a threat letter to famed photographer Carol Highsmith… demanding she pay up for posting her own damn photo. That would be bad enough on its own… but it’s actually much, much worse. You see, Highsmith is such a wonderful person that she donated a massive collection of her photographs to the Library of Congress — over 100,000 of them, for them to be released royalty free for the public to use. She didn’t put them fully into the public domain, though, instead saying that anyone could use them so long as they gave credit back to her. It was basically a very early kind of version of what’s now known as the Creative Commons Attribution License (which didn’t exist at the time she made that agreement with the Library of Congress).
And, so here was Getty Images claiming that it held the copyright on these photos, demanding that Carol Highsmith pay up for using her own photograph, which she had deliberately donated to be used freely.
That’s… not legal.
The Defendants have apparently misappropriated Ms. Highsmith’s generous gift to the American people. The Defendants are 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 the Defendants could not actually lawfully pursue.
As described further herein below, the conduct of the Defendants runs afoul of the DMCA’s provisions proscribing the removal, modification and falsification of “copyright management information,” unlawful conduct that has injured Ms. Highsmith, thereby entitling Ms. Highsmith to the relief sought herein.
The lawsuit notes that despite informing Getty that it was in the wrong, the company continued to demand money from other people making use of her photographs. She also notes that this is not the first time Getty was found to be violating DMCA 1202, and that justifies a much larger monetary punishment.
Getty has committed at least 18,755 separate violations of 17 U.S.C. § 1202, one count for each of the 18,755 Highsmith Photos appearing on Getty’s website. Thus, Ms. Highsmith is entitled to recover, among other things, and if she so elects, aggregate statutory damages against Getty of not less than forty-six million, eight hundred eighty-seven thousand five hundred dollars ($46,887,500) and not more than four hundred sixty-eight million, eight hundred seventy-five thousand dollars ($468,875,000).
The unlawful conduct complained of herein is not Getty’s first violation of the DMCA, codified at 17 U.S.C. § 1202.
Getty was found by this Court to have violated 17 U.S.C. § 1202 within the last 3 years, and ordered to pay over $1 million in damages.
Because Getty has already had a final judgment entered against it by this Court under 17 U.S.C. § 1202 in the past three years, this Court may treble the statutory damages in this case against Getty.
Getty must therefore account for well over one billion dollars ($1B) in statutory copyright damages in this case.
The $1 billion number is a bit extreme, but it is true that Getty doesn’t seem to care at all, and has been shaking down people for ages, sometimes over rights it does not hold. As the lawsuit notes, since Getty doesn’t seem interested in changing its practices, perhaps a more stringent award is necessary.
If you’re wondering about the previous case mentioned above, it’s another one that we covered — the weird and wacky case involving photos from Daniel Morel that were taken in Haiti, leading to a mess of a lawsuit (where almost everyone was totally confused at the beginning) that ended in Getty having to pay up for distributing a photo with incorrect attribution.
The lawsuit also goes after a smaller Getty competitor, Alamy, that is doing the same thing, and some Getty subsidiaries, LCS and Piscount, who, again, are doing the same thing (in fact, the threat letters Highsmith received were from Piscount and LCS). To make matters even more confusing, even though Alamy is a Getty competitor, it uses a Getty subsidiary, LCS, to send out threat letters demanding cash. The lawsuit explains that Highsmith called up LCS and had to talk with them for half an hour convincing them that she was the photographer, she holds the copyright and the images are all available royalty free for anyone to use (with credit back to Highsmith). LCS then informed her that the case against her “was closed” but… continued to shake down others using her images. That makes things look even worse for Getty in this lawsuit, because she can show at least some level of knowledge that they were making fraudulent copyright claims.