Getty answered to Carol Highsmith

[stinger]

I'm not sure this paragraph was clear; it is most disturbing to me, to see how Getty tells the court in no uncertain terms, that it thought the images were public domain, and that's why it "licenses" them - it "licenses" "rights" in them, then claims that no one can do anything about it, if they're free to use by anyone. Anyone but the thousands of users who receive automated letters, that is, anyone but those scared into paying up, when nothing was due.

Does that mean the lawsuit should be amended to claim extortion on Getty's part?

[Engel Nyst]

I'm not sure this paragraph was clear; it is most disturbing to me, to see how Getty tells the court in no uncertain terms, that it thought the images were public domain, and that's why it "licenses" them - it "licenses" "rights" in them, then claims that no one can do anything about it, if they're free to use by anyone. Anyone but the thousands of users who receive automated letters, that is, anyone but those scared into paying up, when nothing was due.

Does that mean the lawsuit should be amended to claim extortion on Getty's part?

If we find people who paid over public domain pictures or Highsmith pictures (or CC0, CC-BY, CC-BY-SA), then they could claim fraud. Highsmith Team is looking for users of Highsmith photos. Getty says it is needed for Highsmith too, in relation with one of her state law claims, to prove people were indeed deceived.

The thing, it seems to me, is that Highsmith can't claim fraud for herself, because she didn't rely on Getty's misleading "rights" representations (she might be the only person in the world who could have never doubted that Getty is wrong!), while fraud requires reliance... so it requires someone who did rely on Getty's representations and paid or was otherwise hurt.

Source, among others, Rakoff's decision in Antidote v. Bloomsbury:

Under New York law, the elements of common law fraud are "a material, false representation, an intent to defraud thereby, and reasonable reliance on the representation, causing damage to the plaintiff."

(internal cite source omitted)

Highsmith herself has 3 out of 4: there's false representation, intent to defraud, damage (IMO: damage to her reputation and the public opinion confused on whether she did donate the photos as she said or gave rights to Getty to go after them). But dunno, she wasn't a victim of fraud.

I'd love to be wrong btw. Let me know if that's the case.

The annoying thing with finding them is that they don't know they were being defrauded. They deleted the images. They paid and moved on. Now sometimes some say on the internets "good it happens to Getty, they bullied me into paying" - but we don't know for what they paid. (was it public domain images? otherwise, copyright infringement threat, at least civil, doesn't seem to qualify). To build on your question, my question is, isn't it clear anyway that people are being mislead, whether we find them or not?

[Mojo88]

If we find people who paid over public domain pictures or Highsmith pictures (or CC0, CC-BY, CC-BY-SA), then they could claim fraud.............

Engel,

Is it legal for someone to charge licensing (or whatever is correct term) fees for images that are in the public domain? Getty seems to say that it IS legal?? To me, it seems like an act of crime.

Thanks

[Robert Krausankas (BuddhaPi)]

no it's not legal per se... I can use a public domain image, say on a t-shirt and charge you to buy that shirt, this would be legal and happens frequently, but I can't download that public domain image and sell you a license to use the image....2 totally different scenarios

[Engel Nyst]

What Robert says. I can sell images in the public domain all I want, the problem is with licenses.

(I will likely do something more than just sell a digital copy, because it's unlikely someone will buy them from me if it's digital form and I offer customers nothing else for their money - after all they'll just find a competitor who offers it for free. Most decent businesses will add value to the offer, like make a t-shirt embedding the image or a nice print and sell the object. I could try to sell without adding anything, or maybe in a special format that you want [like a Google Play book], I'm not in the wrong as long as I'm truthful. A willing buyer and a willing seller can made a transaction over a public domain image, if they so like. As long as no one was fooled.)

What I cannot do, is come to you and lie to you that I own the copyright when I know I don't. I shouldn't make you buy a "license" to those imaginary "copyrights", or worse, make you pay a settlement under pain of infringement of "rights" I know I don't have. Doesn't that strike you as fraudulent behavior? It does to me.

Getty denied in their memo to the court that they claim "copyright" or "intellectual property rights" over photos they knew in the public domain. Smart, Getty - it knew it can't tell the court it somehow has copyrights out of thin air. But Getty does claim intellectual property rights, this point just sounds like a lie.

Even, Getty had the nerve to actually say: (same memo)

At most, Plaintiffs allege a risk of consumer confusion: that Getty Images held “itself out falsely as the agent of Ms. Highsmith� and that, as a result, a consumer might believe she must buy a license from Getty Images to use a Highsmith Photo when, in fact, she could obtain a copy of the photo for free from the Library of Congress (albeit without the functionality and other benefits provided by Getty Images). However, allegations of consumer confusion do not rise to “a specific and substantial injury to the public interest� and therefore are insufficient to state a claim under Section 349.

If the harm to the public wasn't alleged enough, the next amended complaint can do it. I'm confident it can easily be.

So, Getty says "oh you got confused and thought you must pay? such a shame, but we didn't do anything wrong by confusing you intently".
This makes me mad. I'd think unfair and deceptive practices can be added against them, only for this, and FTC might be interested.

[Engel Nyst]

For an image, or any other work, people say "sell it", but what does that mean? It used to mean selling a copy, before software and internet took us all over, but in the digital world that copy often comes with licensing terms attached. So what do I sell? If I sell really a "copy" of a public domain image, and not a "license", then it's fine.

In a transaction for a copyrighted image in digital form, like on Getty's site, it's easy to forget or ignore the copy in itself (it's easy to right click), the buyer/seller care instead about the licensing terms, because well that's what they say they're selling: the licensing, or rights to "use". By that license, the seller allows you to make a copy, for a limited or unlimited time, and gives you rights to display etc.

For copyrighted images that they have the rights to license to you, it works.

For a public domain image, however, I can't sell "rights to use" because you already have all rights to use (you can copy, display, distribute the image yourself).

So hey, how about misleading you. I'll just claim "intellectual property rights" in the image and even pursue "infringements" for "uses" on the web. I tell ya that I own something I do not; I deny in your face that you have rights to copy, display the work, and I intently make you believe that you are not permitted to "use" the work unless you pay me up.
Oh and when I end up in court, I'll innocently tell the judge I never claimed intellectual property rights over public domain images...

[Engel Nyst]

Just to note. I realized I read the whole bunch of legalese in Getty's new licensing agreement, and I didn't see something. At the time of DMLA's statement (first weeks of this lawsuit), when I looked at Getty's website, I wrote:

Click on "Rights Managed", and I get this page:
http://www.gettyimages.com/Corporate/LicenseAgreements.aspx#RM

I can't even begin to count how many things are wrong with that page, for a public domain image. I pick one: citation. The page claims that the user must cite the archive as  "[name of photographer] / [Collection Name] / Getty Images". Otherwise, he/she will be charged 100% fee in addition to other remedies Getty would allegedly have. The irony.

Now Getty removed the penalty from its new agreement.