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Giveaway photographer sues Getty for $1 billion

Zuma agency piles in for another, cough, $24 billion

ADVOCATES of "Creative Commons" licensing often describe it as anti-copyright. The NUJ has pointed out since it was launched that it's an application of copyright. If you want to give your work away - that's up to you.

Presumably, then, you'd want to give it away so that it stays given and isn't rolled up into some corporation's portfolio. To do that, you need strong, enforceable authors' rights to defend your decision against all comers.

The point is now made in a lawsuit by Carol M. Highsmith against Getty Images. Carol chose to donate photographs to the US Library of Congress. Getty, she says, is charging for access to them. She's suing. For $1 billion.

The case makes sense, on the face of it. The amount claimed? Only in America.

But then we see Spiegel reporting that Getty had written to Highsmith saying she had used on her website a photo from Getty's portfolio without a license, and asking for $120. That would be one of her photos, that she had donated to the Library. The lawsuit also names Alamy. UK photographers just missed their chance to write notifying this agency that they want to keep their money for secondary uses like photocopying.Also sued are copyright enforcement providers LCS and Picscout - and, for completeness, it includes "John Does 1 to 100" as "unnamed, as yet unidentified parties acting in active concert or participation with the named Defendants". Only in America.

Pursuing infringers is fine... when done by the photographer, who know what's hers.

Meanwhile, in April Getty made a complaint to the European Commission against Google. It "focuses specifically on changes made in 2013 to Google Images, the image search functionality of Google, which has not only impacted Getty Images' image licensing business, but content creators around the world, by creating captivating galleries of high-resolution, copyrighted content." Highsmith's claim quotes the section of this complaint dealing with the value of creative works to, it would seem, devastating moral effect.

2 August 2016

Having read the 73 pages of Highsmith's complaint and annexes: AH! In European terms, it's a "moral rights" case. (It's about the photographer's right to be accurately credited.)

On 31 December 1981 Highsmith "conveyed title" in 230 photographs (prints and negatives) to the Library of Congress in a document that stated "I hereby dedicate to the public all rights, including copyrights throughout the world, that I possess in this collection." Creative Commons licences did not of course exist at that time. She has continued to add to the collection under the same terms.

These terms include a provision that "The Library will request, through its standard procedures, that when material in the Archive is reproduced... credit be given as follows: 'The Library of Congress, Carol M. Highsmith Archive'."

The complaint filed on 25 July 2016 produces examples of both Getty and Alamy presenting her photos without this credit and indeed marked as belonging to the respective agency.

The US Digital Millennium Copyright Act (incorporated into the Copyright Act as Section 1202) provides that "No person shall, without the authority of the copyright owner or the law, intentionally remove or alter any copyright management information, ". The penalty may be "statutory damages for each violation of section 1202 in the sum of not less than $2500 or more than $25,000".

Those figures are "statutory damages" in contrast to "actual damages," the value of which must be accounted for and proven to the court's satisfaction: these, as you can see, are set out in law. US law provides "statutory damages" for economic loss for copying works only where those works are registered; but no connection between these damages for alteration of credits and registration is apparent.

A search of the Getty site returned 18,755 results for "Carol M. Highsmith". So: 18,755 multiplied by $25,000 is $468,875,000. But Getty has been found guilty of a similar offence in the past three years - in the case of Daniel Morel (who is due just $20,000 for the alteration of "copyright management information" on 8 photos, on top of actual damages of $1.2 million).

(Today, 2 August 2016, that search returns 2 results.)

Because of this earlier ruling, the court hearing the Highsmith case may treble the damages, up to $1,406,625,000 (the complaint modestly specifies "well over one billion dollars").

5 August 2016

And there's more: in the same week independent picture agency Zuma sued Getty alleging misuse of "approximately 47,048" photos. The complaint talks in general terms of Getty's "reckless" acquisition of images and its relentless buying-up of photo collections. It does not specify an amount, Assuming that copyright is registered in all the photos in question, the theoretical maximum statutory damages would be $7,057,200,000 for the economic rights at $150,000 each, plus $1,176,200,000 for falsifying the credits: $8 billion in total. With the option of trebling damages, for the abovementioned reason.

Belated update: 13 April 2020

Highsmith's case was thrown out in November 2016 when a judge riled that since she had dedicated her photographs to the public domain she could not bring suit in respect of them. This goes to reinforce the point that the Freelance has long been making: anyone who wants to give ther work away needs strong copyright protection to ensure that it stays given and isn't vacuumed up by some corporation or other.

Last modified: 01 Aug 2016 - © 2016 contributors
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