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Jul 30 2016

$1 Billion Lawsuit Against Getty Images Shows Effects of Trolling

Acclaimed photographer Carol Highsmith has filed a Federal lawsuit alleging violations of the Digital Millennium Copyright Act against Getty Images and other parties for their attempt to charge her and others for the use of her own photos. Ms. Highsmith has been praised by the Library of Congress for her donation of thousands and thousands of her images of the American landscape to the Library of Congress. The Carol M. Highsmith Archive, which is expected ultimately to include over 100,000 high-quality, professional-grade images, is accessible royalty-free via the library’s website. The Library said of her donation that her act was “one of the greatest acts of generosity in the history of the Library.”

Her reward? A demand letter from Getty Images over her own use of one of her pictures. She received a similar letter from British photo library Alamy, which used Getty subsidiaries PicScout and License Compliance Services (LCS), to scour the Internet to find photos that they allegedly owned used by folks who did not pay a license fee. So Ms. Highsmith is suing Getty Images, Alamy, PicScout and LCS for $1 Billion as she has found over 18,000 of her images in Getty and Alamy’s photo libraries without any accreditation. She is seeking statutory damages as well as punitive damages.

It a huge blow to Getty, which in 2013 lost over $1 Million in damages to Haitian photographer Daniel Morel for using his incredible pictures from the Haitian earthquake without his permission. Ms. Highsmith references Mr. Morel’s claim in her complaint as proof that Getty should know better and is careless about their use of images. Getty will find it hard to explain how it has all these Highsmith images on its site without accreditation and without paying Ms. Highsmith when they license the images to others. The discovery of how Getty tracks, obtains and catalogs its images could be extremely revealing and damaging to the company. Believe me when I tell you that I will be watching this lawsuti very closely as it progresses.

copyright logoFor me, this lawsuit was Christmas, Easter and the Fourth of July all wrapped up in one pretty little package. Getty began this letter demand program in 2006 or so and has sent out hundreds and thousands of letters each week to alleged copyright infringers who are accused of using a Getty image on their website. Since 2008, I have been the legal adviser and commentator on a website called ExtortionLetterInfo.com(ELI). ELI was founded by Matthew Chan, another Getty target who refused to take it lying down. He decided to fight back and investigate Getty’s claims. He started ELI as a source of information for other victims and asked me to join him to provide legal insight and information to the website’s visitors. Neither of us imagined the extent of Getty’s Letter Program but until the website began to get inundated by requests for help from all over the globe. Since 2008, I have personally represented over 3,000 individuals and business in these claims. ELI now has a dedicated group of people (all former Getty targets) who help answer questions and keep folks updated on what’s happening in this field.

Here’s how the Getty letter demand program works. Getty uses PicScout, a software developed in Israel by two engineers, to scan and scour millions of websites for images that are contained in its catalog. When PicScout finds a match it reports the find to Getty which now uses its subsidiary License Compliance Service to issue a threatening letter. The letters used to demand over $1000 to $1500 per image when the program started. But in large part due to Matt Chan’s, ELI’s and my efforts hey demands are around $500. But the reason why we all call it “legalized extortion” is that Getty refuses to show proof of ownership of the images or proof that the photographer has authorized Getty to pursue damages or proof that Getty ever licensed the images for any amount of money close to the demanded amount. But the reason why Getty’s trolling program works is that few folks are willing to fight a billion dollar company over a $500 claim. Getty has tried many times to thwart ELI and my efforts. In fact, even now, cases of Getty letter recipients who hire me are not handled like anyone else’s – instead they are referred to a Seattle law firm Yarmuth and Wilsdon who threatens to file suit over a single digital image if the client doesn’t pay the demanded amount. They never do that to NY letter recipients though since they know I would represent them for free in such a case so even if these targets want to use my services they will need to hire a local lawyer to defend the a case in the local Federal court. Since that will invariably cost more than the demanded amount, Getty gets their pound of flesh without ever having to prove the validity of their claim. Let me give you an analogy: Say you’re driving and by mistake you tap into the bumper of the car in front of you who was stopped at a red light. Although you see only a minor scratch on the other vehicle, you exchange information. A year later, you get a letter from the other car’s driver asking for $500 to repair the scratch. You ask him to send you a repair bill or other proof that the car repair cost that much. He refuses. Now he sues you in court. You were in the wrong but you feel he will have a hard time proving his case so you’r ready to fight him in small claims court. But copyright cases don;t go to small claims, no matter the value. They go to Federal Court. And if your website is owned by a company or a corporation (as most business websites are) you MUST get a lawyer as a corporation cannot represent itself in court. Now what? Do you spend $2,500-$5,000 as an initial retainer to fight a $500 claim? No you pay up and go home.

But Getty mis-stepped here. Its program is so massive that it doesn’t check into who they are sending letters out to; there are no checks and balances. If PicScout says you stole a Getty image, you get a letter. And believe me it usually works. After all, back about two years ago Getty bought PicScout for over $20 Million and it now licenses PicScout and LCS to its own competitors for their use. So Getty’s competitors are paying Getty for their own infringement program. Here Getty demanded only $120 from Ms Highsmith. I am sure they never expected that their $120 demand letter would land them in a billion dollar lawsuit. It took me five full minutes to stop laughing when I read Ms. Highsmith complaint, which you can find HERE. It couldn’t happen to nicer guys.

The Getty lawsuit also reveals the dangers of trolling. Many industries are using similar tactics to target bars that play live music; or folks who may have downloaded porn; or people who share celebrity images. People don’t know their rights, don’t have access to lawyers and are faced with the choice of settling for an amount they can afford or fight the case for ten times or more than that amount. Most of them decide to settle without ever knowing if they were guilty of what they were accused of or even if the attacker can prove the claim. Hopefully this lawsuit will alert Federal courts to the sketchiness of some of these trolling-type claims and send a message to copyright trolls that they better be more careful about their practices.

14 comments

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  1. Jack B. Nimble

    @Oscar “proof that the photographer has authorized Getty to pursue damages or proof that Getty ever licensed the images for any amount of money close to the demanded amount”

    and your car analogy only make sense for unregistered works. As you know. But you seem unwilling or unable to turn off the “litigating” and simply explain the law. I assume most Getty images like images generally are not registered so I get that it may be relevant to your “extortion letters” but that doesn’t make your explanation any better.

    You may want to actually read the complaint the Highsmith Complaint before writing about it because she clearly has NOT filed a “Federal copyright lawsuit against Getty” as you claim in your first sentence. She makes no allegation of copyright infringement. All her claims are DMCA related (17 USC 1202, 17 USC 1203) essentially claiming they messed with her “copyright management information” removing hers and/or adding false CMI.

    That’s with respect to over 18,000 images. $25,000 maximum per image may be awarded on the CMI claim. They reference the Morel case because that case had a 17 USC 1202 violation and if you do it again within 3 years of being found liable on such claim the court can treble damages. That’s how they get into Austin Powers over One Billion territory. 18,000 x 25,000 x 3.

  2. April Brown

    Excellent post and I join you in the gut busting laughter.

  3. Peevey

    https://www.youtube.com/watch?v=eqBR8knRM2w

    Nuff said.

    1. Oscar Michelen

      Perfect, Peevey.

  4. Jack B. Nimble

    Interesting that (notwithstanding your description in your blog post that she filed an infringement suit) she makes no copyright infringement claims. Only DMCA claims relating to CMI.

    Perhaps because despite the narrative in her complaint about making available to the public her photos through the LOC the better view based upon the language in Exhibit B “Instrument of Gift” is that she placed them into the public domain ?

    Have you read this document. What do you think ?

    1. Oscar Michelen

      Yes you are right – its a DMCA claim not a copyright infringement claim and I will correct the article. If she gifted it to the LOC she could have lost the opportunity to claim infringement.

      1. Peevey

        Good points by Jack regarding the type of suit.

        Based on what I’ve read in the complaint is that it is not an “infringement” claim but
        about “misappropriating Ms. Highsmith’s generous gift to the American people” through the LOC, as well as Getty “falsely and fraudulently holding themselves out as the exclusive copyright owner (or agents thereof) etc..
        (Exhibit A Number 7).

        FACTUAL ALLEGATIONS:

        Number’s 36 & 37: Interestingly refers to the “intentions” of Ms. Highsmith with regard to her
        ” exclusive rights” and what the public “should (emphasize “should”) be able to reproduce and display”.

        Page 12 – Number 55: “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 Highsmith Photos from Ms. Highsmith (other than the right to reproduce and/or display them for free, which she has granted to everyone).”

        It will indeed be an interesting case.

  5. Jack B. Nimble

    @Oscar: “If she gifted it to the LOC she could have lost the opportunity to claim infringement.”

    Exhibit B ‘Instrument of Gift” to the Complaint states, among other things, “I hereby dedicate to the public all rights, including copyrights throughout the worlds, that I posses in this collection.”

    Oscar, is this sufficient in the US to place the collection into the public domain ?

    There are subsequent paragraphs concerning, among other things, how she would like the LOC to administer the collection with respect to access and reproduction including requesting photo credit be given “through its [LOC] standard procedures.”

    The LOC website says “Carol M. Highsmith’s photographs are in the public domain.”

    https://www.loc.gov/rr/print/res/482_high.html

    If she did place the photos into the public domain, would she lose the rights concerning her CMI under 17 USC 1202 ? Such statute requires the actions with respect to her CMI occur “with the intent to induce, enable, facilitate, or conceal infringement.” If the photos are in the public domain then there isn’t going to be infringement, right.

    I know she did not bring any sort of claim in this regard because she is arguing that the photos were not placed into the public domain merely granted to the public to use as administered by the LOC and with photo credit required.

    However, does the Copyright Act provide a direct remedy for this type of alleged fraudulent behavior with respect to copyright ownership ? I can only think off my head of false DMCA notices which is another context and even there the remedies are practically without teeth. If not, what about a state law claim for something along the lines of fraud ? Would such a claim even be hers ? Or would it rest with the LOC who is administering the collection ?

    1. Oscar Michelen

      These are not simple issues but I will try to respond as clearly as possible. It technically is as simple as someone saying “I release my works into the public domain” and that is normally irrevocable but there is no specific mechanism for doing this. Ms. Highsmith I think is saying she gave the LOC the unfettered right to make use of her images but did not give up all moral rights etc in the images themselves. And as you pointed out she is not suing for infringement but for DMCA violations as she never gave up the right to be accredited.So I think she still has the legal right to assert a claim for removal of CMI.

  6. Dr. Jack B. Nimble, not M.D.

    Because you answered none of my questions above, I’ll ask another.

    The Copyright Act provides no mechanism whatsoever for a copyright owner to place a copyrighted work into the public domain. What’s the case law say ? Can you do it ? What exactly is required ?

    1. Oscar Michelen

      Here is good link form Wikipedia that explains the process which is not as clear and simple as one might think https://en.wikipedia.org/wiki/Wikipedia:Granting_work_into_the_public_domain

      1. Jack B

        This one doesn’t think it clear and simple because there is nothing in the Copyright Act concerning putting content into the public domain and because you won’t pay for my research so I can’t hunt for case law. That’s why I asked what you thought the effect of her “gift instrument” was along with the LoC statement on its site that her work is in the public domain.

        Thanks for pointing to wiki but the wiki article is a lot of words that don’t say much. First it says it easy to put into PD then it says it’s hard and cites the CC method which is more of a waiver of copyright claims with a fallback license which is far from what she did.

        Based solely on wiki its hard to say what Highsmith accomplished.

        I tend to think she did put the work into the P.D. but Getty’s behavior is bad not for repurposing the work into a perhaps more useful database (that may add value) but insofar as it apparently presents itself as the copyright owner of the individual works. So maybe a court free to go either way on whether she gave up all rights will “save” Highsmith if the case gets that far.

        But I still think the bigger issue is not really about Highsmith CMI claims but more about Getty pretending to own copyright through aggressive assertions by its software dog (I’m guessing) which finds images and sends out demand letters with no analysis of the underlying facts.

  7. Stinger

    Here’s hoping Getty gets theirs over this issue. Been a long time coming.

  8. Per

    Hahahahahaha…. FINALLY! Getty Images proven to steal images and then extort people and companies for money. What a lovely company.

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