ExtortionLetterInfo Forums
ELI Forums => Getty Images Letter Forum => Topic started by: Engel Nyst on September 08, 2016, 01:26:50 PM
-
Source:
http://www.latimes.com/business/la-fi-getty-images-carol-highsmith-20160907-snap-story.html
The article mentions that Alamy filed separately an answer too.
I didn't read the answers yet; but as expected it's clear Getty went the route to attack her copyright in the photos. From the article:
In its court papers, Getty Images noted that publishers charge money for their copies of novels by Charles Dickens or for Shakespeare plays even though those are in the public domain.
Sure thing, except that's not what Getty is doing.
So can people charge for CC-BY or CC-BY-SA works, they just don't call the charge a "copyright license" and absolutely don't claim some exclusive rights somewhere in them. LCS/Getty does that with CC licensed works too:
https://www.2600.com/content/2600-accused-using-unauthorized-ink-splotches
And, how about pursuing "infringements"?
The company’s lawyers said the lawsuit was “an attempt to regain some measure of legal protection for the Highsmith photos that plaintiff Highsmith relinquished years ago.”
Yeah, as I expected. This will be the hurdle to clear, it's because of the wording of the instrument of gift that Getty can make an argument here.
EDITED to add: if anyone has the answers filed by Getty and Alamy, please post them.
-
A detail I find on them internets: it seems the law firm representing Getty in this suit has had some previous work done for Carol Highsmith, if I'm reading this right:
http://www.law360.com/articles/832483/jenner-block-says-there-s-no-conflict-in-getty-photos-suit
It appears it will continue to represent Getty though. (probably not the same lawyers? I don't know.)
/trivia
-
Here is the (full?) list of legal representations:
https://www.pacermonitor.com/public/case/15309054/Highsmith_v_Getty_Images_US,_INC,_et_al
Nancy Wolff is legal representative for Alamy and LCS. Lindsay Warren Bowen, Jr, from Jenner and Block, also represents Alamy and LCS. Three other lawyers from Jenner and Block represent Getty Images.
Jenner and Block is the firm I mentioned in the previous post, those who apparently performed some work for Carol Highsmith in the past.
-
Found Getty's answer, or rather, a memorandum of law in support of their motion to dismiss:
https://www.documentcloud.org/documents/3104590-Getty-Highsmith.html
And another article on it:
http://www.hollywoodreporter.com/thr-esq/music-publishers-photo-agencies-battle-926620
Comment on Dastar
*Before* reading Getty's memorandum, one quick comment at first sight through the table of contents: it relies on Dastar to ask for dismissal of Lanham Act claims. Bloody hell, fine. This is so interesting to me, because one reason why in my laundry list (http://www.extortionletterinfo.com/forum/getty-images-letter-forum/photographer-sues-getty-for-extortion-letters-over-her-work/) of alternative bases for Carol, I didn't list Lanham Act, was because I assumed (but did not check!) that it was barred by Dastar. Moreover I didn't comment on the first amended complaint on this point, because I didn't want to do Getty's work for them. :P
The core issue there is this: copyright indirectly concerns attribution, authorship, credit, whatever you name it. Lanham Act on the other hand, meaning trademark, concerns source of goods and protecting the consumer from confusion (and the mark owner from misleading claims of competitors). At some point they seem to intersect (right? sometimes the author is the source or producer of the work, and one could seem prone to confuse even if it isn't). But the Supreme Court in Dastar held that they do NOT intersect. They have to deal with different concerns. The person might be the same all right, but the perspective that makes them an author is different from what makes them the source of goods. If a claim is actually in copyright (e.g. missing attribution, or misattribution), one shouldn't forcefully make it into a Lanham Act claim, e.g. complaining about the incorrect "source of goods". Even though all authors and all distributors and derivative works authors would somehow appear to be part of the "source" on the way, until the work gets to a user, or precisely because they all appear to be, they can't all be the meaning of "source" of a work. From the user's perspective, it's only one, like the manufacturer, not the whole array.
Here's the Dastar decision: (a wonderful read, btw, even without implications for this case)
Dastar v Twentieth Century Fox Film (https://scholar.google.se/scholar_case?case=13445605668854417212)
The facts there are not the facts here, and the claim itself was also bizarre ("reverse passing off"). Still, basically, to me, its point is: if a claim of attribution/misattribution makes sense naturally in copyright, I would be wary to state that maybe there's a trademark-ish issue in there, too, or instead; because it might well not be.
In our case, it's a mess... Holding that these photos are "highsmith/buyenlarge/getty", means what exactly, does it mean that the photos were held to the users as being a work curated and copyrighted by Getty, offered by Getty to the user, or authored in some way by all three, or what the heck does it mean? Team Highsmith made a Lanham Act claim. I was surprised, but as I was reading the first amended complaint, I was further pleasantly surprised to see that Team Highsmith knew what it was doing: it actually quoted Dastar in a way that supported their claim. (I don't have it now in front of me, speaking from memory)
I was happy to see that it was well aware this one might be tricky, and considered it before making their claim.
-
I really have no time tonight (damn!), but I'll pass quickly only through the Lanham Act part of Getty's memorandum. I'm too curious, so might as well do it in writing, if you wanna read that.
Fair note: this is, in my opinion, a difficult part of Carol's claims, one of the few where Getty might have a point, so I want to see how well Getty treats it, if it does. I'm limiting myself to only this particular part, for now.
The memorandum has 3 parts (from my perspective):
(1) Getty's take on copyright v public domain (http://www.extortionletterinfo.com/forum/getty-images-letter-forum/public-domain-v-copyright-liberal-license-%28highsmith-v-getty%29/) issue;
(2) Getty's answer to Lanham Act claims;
(3) Getty's answer to state law claims.
I'm dealing with (2) in this post.
Although the narrative of Plaintiffs’ FAC is long and wide-ranging, Plaintiffs’ four claims against Getty Images – two federal law claims and two state law claims – are all an attempt to regain some measure of legal protection for the Highsmith Photos that Plaintiff Highsmith relinquished years ago.
Yeah, so Getty sets the stage from the start:
(a) it says that the works are in the public domain; and
(b) it follows Dastar style, asking to dismiss them because they'd be ALL some sort of hidden copyright claims.
On false or misleading representations of facts, false affiliation claims 43(a)(1)(A)
In Count IV, Plaintiffs assert a claim against Getty Images under Section 43(a) of the Lanham Act. Section 43(a) proscribes “any false designation of origin, false or misleading description of fact, or false or misleading representation of fact” that:
(A) is likely to cause confusion, or to cause mistake, or to deceive as to affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or (B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services or commercial activities.
15 U.S.C. § 1125(a)(1)(A)-(B).
Right.
In essence, Plaintiffs claim that Getty Images violated the Lanham Act by falsely holding itself out as an author of the Highsmith Photos or as the author’s agent with exclusive rights to license the photos. That type of Lanham Act claim, whether styled as unfair competition under 43(a)(1)(A) or false advertising under 43(a)(1)(B), is clearly foreclosed by Dastar and its progeny.
Is it? Saying so doesn't make it so. The second - fraudulent claim of being author's agent - doesn't seem foreclosed... Getty *IS* holding itself out as the agent with exclusive rights to license the photos. That reflects on the author, in a way that isn't strictly copyright-like...
[... stuff from Dastar...]
The Court made clear that, as a matter of copyright law, “[t]he right to copy, and to copy without attribution, once a copyright has expired . . . passes to the public.” 539 U.S. at 33 (quotation marks omitted). Thus, “[a]ssuming for the sake of argument that [the defendant’s] representation of itself as the ‘Producer’ of its videos amounted to a representation that it originated the creative work conveyed by the videos, allowing a cause of action under Section 43(a) for that representation would create a species of mutant copyright law that limits the public’s ‘federal right to copy and to use’ expired copyrights.” Id. at 34. The Court noted that “[w]hen Congress has wished to create such an addition to the law of copyright, it has done so with much more specificity than the Lanham’s Act’s ambiguous use of ‘origin.’” Id. (noting that 17 U.S.C. § 106A provides an “express right of attribution” that is “carefully limited and focused.”).
Yes. But I'm not sure this addresses yet the complaint. (the first amended complaint didn't say "reverse passing off", did it? I thought it didn't)
Thus, the Court held that the phrase “origin” of “goods” in the Lanham Act “refers to the producer of the tangible goods that are offered for sale, and not to the author of any idea, concept, or communication embodied in those goods.” Id. at 37.B.
Yes. But I'm not so sure it's all applicable; we seem to forget that here we actually don't even have a "buyenlarge" or even Getty as producer of the tangible goods, if the tangible goods would be ANYTHING, anything at all, different from Highsmith's photos. You know, in Dastar we actually had a film producer making a derivative work of the older work in question, and saying it's the source of the goods. It was also the author (of the derivative), but that's a different concern than 43(a). In this case, all we have are digital copies. To be sure, they're tangible goods, but they're NO DIFFERENT than the original goods. Like, not at all, in substance.
“because photographs are ‘communicative products’ protected by copyright, false designation of their authorship is not cognizable under Section 43(a)(1)(A) after Dastar.” Morel, 769 F. Supp. 2d at 307.
Morel also had a Lanham Act claim? I forgot. I didn't follow Morel too much, though I know it.
Anyway, Getty seems right on this one. The issue is that you can't create another right, meaning basically the same and infringed by the same actions that would infringe copyright, with 43(a). That was my understanding of Dastar.
I'm not so sure about the agency issue though: what we have here is an entity that exposes Carol Highsmith's name in public as one of the authors represented by them, wrongfully, implying an right given by the person when none was given. That seems different to me.
Although Dastar concerned a misrepresentation of origin claim, this Court has held that Dastar’s reasoning applies with equal force to bar claims for false representation of “affiliation” between the author and a distributor of the communicative product. Antidote, 467 F. Supp. 2d at 399 (holding that Dastar applies to “affiliation” claims “where, as here, one person is the publisher of a novel and the other is the author of the novel, because the holding of Dastar would be meaningless if a false authorship claim could be recast in this manner.”); Morel, 769 F. Supp. 2d at 307. Accordingly, it does not matter whether Plaintiffs style their Section 43(a)(1)(A) claim as a false assertion of authorship or a false assertion of affiliation. Either way, Dastar forecloses the claim.
This one doesn't seem right. It can't be that I can claim affiliation and/or endorsement of the author, when I do not have permission from them, only because - lets say - the author can't prevent me via copyright. What exactly would be the leftover meaning of 43(a) affiliation claim, if it lives or dies via copyright alone? Then we can remove the section from the Lanham Act, and make all of them things into things to be dealt only with the copyright act.
Maybe it's just me, but on this point, I don't get what Getty wants to say. There are public domain works out there (I'm NOT saying Highsmith's photos are, but just take a hypothetical for public domain works), like SQLite (https://sqlite.org/copyright.html). I bet I can't go around claiming I'm affiliated or endorsed by Hwaci, the company where most its developers work, or that I'm Hwaci's agent, when I'm not.
That's NOT a copyright issue, it's - I think - indeed a Lanham Act issue. (and probably some state laws)
On false advertising, 43(a)(1)(B)
In an apparent attempt to circumvent Dastar, Plaintiffs also assert a false advertising claim under section 43(a)(1)(B). FAC 223-225. Plaintiffs rely on language in Dastar in which the Supreme Court presented a hypothetical and stated it “might” give rise to “a cause of action . . . for misrepresentation under the ‘misrepresents the nature, characteristics [or] qualities’ provision of § 43(a)(1)(B).” 539 U.S. at 38; see FAC 222. However, this Court has already considered this precise passage from Dastar and rejected any attempt to use it as an end run around Dastar’s bar on misrepresentation of authorship claims:
While this language might be read to suggest that the Supreme Court was leaving open the possibility of a claim arising from a misrepresentation going to the substance of a work, rather than the work’s authorship, in the instant case, with respect to claims that sound in false authorship, the holding in Dastar that the word “origin” in § 43(a)(1)(A) refers to producers, rather than authors, necessarily implies that the words “nature, characteristics, [and] qualities” in § 43(a)(1)(B) cannot be read to refer to authorship. If authorship were a “characteristic[ ]” or “qualit[y]” of a work, then the very claim Dastar rejected under § 43(a)(1)(A) would have been available under § 43(a)(1)(B). Antidote, 467 F. Supp. 2d at 399-400
I remember this from the first amended complaint. I didn't write on it, but yeah, it did seem disputable to me that authorship-related or copyright-rights-related claims can be about the "nature, characteristics, qualities" of the work. We'll see, does Team Highsmith have some caselaw to back their interpretation? I don't know much Lanham Act jurisprudence, so I can't say on this one.
There's another problem for Getty though. Authorship is not the only thing here. There's also misrepresentation regarding the status of the works, the threats to pay up because the works are supposedly under a copyright "infringed" by the users. So far Getty seems to be answering to only one, clearly Getty loves how Dastar bans hidden authorship/credit claims so it tries to make it all about authorship.
But I'm not sure it would work for copyright rights either, tbh. When I hear false advertising I think about material falsity, I mean physical...
According to Plaintiffs, Getty Images is “advertising and promoting a ‘rights managed’ license fee” for the photos, even though “Getty has no exclusive rights” to the photos and “therefore, has nothing to ‘license.’” FAC 223. But even if true, the “license status” of creative works such as these does not concern “the nature, characteristics, qualities, or geographic origin” of the works, and thus is not cognizable under Section 43(A)(1)(B)
Ah, there it is. So, about the "license status", yeah. I think Getty has a point. As noted, I don't really know history on this (Lanham Act). It's just hard, from the point of view of a copyright nerd, to understand why false licensing would be false advertising of a product. "Advertising and promoting a 'rights managed' license fee" (if this is indeed the expression in the complaint) doesn't really sound like advertising of a product, does it? (Then again, my problem still is, how do you call it then, when it *is* misleading people, and threatening them with 'rights' to sue they do not own? It seems like racketeering, of sorts.)
Anyway this is a matter of correct Lanham Act interpretation (which I do *not* even try to do), and we'll see what caselaw Team Highsmith will bring to the table.
Trivia
Getty's memorandum conveniently quotes some decision made by Rakoff. I didn't check it out, just think that in general it's not a bad idea.
You know, there's even a startup in legal tech area, which attempts to offer insights into how court cases work, based on... counting previous wins or losses of particular lawyers in front of particular judges:
http://premonition.ai/news/
Conclusions
Too early for conclusions actually, but I want to reiterate the main things I take away from this particular issue with Lanham Act:
- My impression on Getty's answer on this point is that it's not bad, at a cursory reading. It was easy to be pretty good, mind you; hey even I expected it, because Dastar is crystal clear and amazing, and indeed doesn't accept authorship claims disguised as some kind of false designation of origin, and we have an uneasy overlap here.
- However, the points Getty brings on agent/endorsement/affiliation issue don't seem convincing to me. I'm not sure, I would need to check all this, I'm just unconvinced Dastar bars affiliation claims, or that it should. I hope we shall see more on that one. Remember LCS *did* explicitly hold itself as agent of the copyright holder/author in its pursuing of Carol herself. This is NOT some implicit authorship claim on the work, regardless whether there were also such pretenses, it's something else entirely.
-
Just to note.
So, I re-read my analysis and I think there is a strong point for Team Highsmith on the affiliation issue. It's a pretense of endorsement, it's even an explicit pretense of endorsement in the case of LCS's threats, and it's pretending to the user(s) that Getty/LCS/Alamy "represent the photographer" (their words!).
*This* is not a copyright issue, hidden or otherwise. Even if, in part, it's provable via their slapped copyright on the photos or watermark. In part it's also provable through other facts, like the extortion letter, and the understanding of the public around Getty/LCS/Alamy acting as enforcement agents.
-
You folks may want to watch this unbelievable statement of Getty's memorandum:
(internal quotations removed, my emphasis)
As noted, Plaintiffs complain extensively of a single letter that Defendant LCS sent to Plaintiff TIA on behalf of Defendant Alamy – and not on behalf of Getty Images – allegedly asserting copyright interests in a particular Highsmith Photo. Although the letter and the alleged communications surrounding it had nothing to do with Getty Images and thus are irrelevant here, Plaintiffs allege that LCS is an “alter ego[]” of Getty Images, such that the allegations against LCS “should be interpreted to include Getty . . . as appropriate.” However, these alter ego allegations are wholly conclusory and should be disregarded. Two elements are required to pierce the corporate veil: (1) the parent must exercise “complete domination” over the subsidiary “with respect to the transaction at issue,” and (2) “such domination was used to commit a fraud or wrong that injured the party seeking to pierce the veil.” Multiple factors are relevant to piercing the corporate veil.
Adequately pleading an alter ego theory requires far more than merely asserting that the defendants share some officers and resources, which is all that Plaintiffs have done here.
This is Getty saying like, we just share some officers and resources, but we're not the same entity and the letters sent by LCS over years - oh lets ignore those - when LCS wasn't even incorporated, we don't know from whom they were, we just paid the people sending them.
-
State law claims, part (3) of the arguments in Getty's memorandum
So, the first amended complaint adds two state law claims, under New York law. I don't know too well these laws and their jurisprudence, so my commenting on Getty's reply is limited.
Same thing as a copyright claim or not
First, as expected, Getty attempts to attack the claims saying they must be preempted by copyright. The issue here is this: if I do something to material that copyright law is concerned with (this includes a public domain work), and what I do is exactly and only the acts that would infringe an exclusive right (copy the material, distribute it, display it, and a couple others, nothing more), then I can only be sued for copyright reasons. No other law, state law, can apply, in addition of copyright or instead of it, if my actions are directly those that copyright is meant to cover.
That is, Highsmith can only bring those state law claims where the state laws are breached by Getty doing something else, in addition or instead, the exact actions that would make it a copyright infringer (all else being equal).
I don't have any opinion on whether these two claims by Team Highsmith are or are not doing that. Getty keeps saying that they do the same thing as copyright, so they mustn't apply. But what I recall I noticed from Highsmith's complaint, is that it talks about other things, like bad faith, required by these laws. Indeed, other elements in Getty's conduct to breach those laws could make Highsmith's claims stand, and Getty's arguments dismissed. We shall see.
Public domain works policy
Getty also claims that allowing state law claims at all would pose an obstacle to accomplishing federal policy regarding public domain works. This part of their memo is so weird for me to read, because what really happens, is not that state law claims, if they contain more than just copying or displaying the works, pose any obstacle to copying or selling public domain works. Instead, they'd pose obstacles to precisely obstructing free use by the public like Getty is obstructing it by "licensing" public domain works. That is to say, they might help *assure* that federal policy of keeping a free public domain is not subverted by misleading pretenses of "licensing" and "restrictions on use" like Getty puts on them. At least that's Highsmith's intention.
Getty's own words, amazingly, are: (sources of internal cites removed, for simplicity of reading)
"the general proposition pertains in copyright law, as elsewhere, that a state law is invalid that stands as an obstacle to the accomplishment of the full purposes and objectives of Congress.” [Nimmer] “When state law touches upon the area of” federal copyright or patent law, “it is ‘familiar doctrine’ that the federal policy ‘may not be set at naught, or its benefits denied’ by the state law.” Here, permitting Plaintiffs to recover under [state laws] would create an obstacle to the accomplishment of the Copyright Act’s objective that a work in the public domain – whether because the work is not copyrightable, because copyright protection has expired, or because, as here, the copyright holder has voluntarily ceded that protection – “may be made and sold by whoever chooses to do so.”; also “Any person may use the public domain work for any purpose – quoting, republishing, critiquing, comparing, or even making and selling copies”. Indeed, this is precisely the teaching of the Supreme Court’s decision in Sears. There, a lamp manufacturer sued Sears for unfair competition in violation of state law for selling a lamp substantially identical to the one the manufacturer had created, but which was not subject to a patent. The Supreme Court held that state law liability was preempted: “Just as a State cannot encroach upon federal patent laws directly” by extending the life of a patent, “it cannot, under some other law, such as that forbidding unfair competition, give protection of a kind that clashes with the objectives of the federal patent laws.” Because the lamp was “in the public domain,” Sears had “every right . . . under the federal patent laws” to copy its design for profit; “to allow [the] State by use of its law of unfair competition to prevent [such] copying ... would be to permit the State to block off from the public something which federal law has said belongs to the public.”
The Court thus concluded that “a State may not, when the article is unpatented and uncopyrighted, prohibit the copying of the article itself or award damages for such copying.”
Right, and we have two candidates here:
(1) if Highsmith's state laws ban indeed only copying or other copyright-covered acts (and not bad faith or whatever else), then to be sure, they'd be preempted;
(2) Getty's licensing over public domain works - hey it says so itself! -, is an attempt to gain copyright-like protection against its users, in contradiction with the exact policy quoted above.
As Nimmer put it, such purported "licensing" with "restrictions on use" (like Getty admits doing in its own memo) "contravenes one of the core policies of the Copyright Act by extending quasi-copyright protection to works that do not qualify as "original." (source (https://cyber.harvard.edu/property00/alternatives/nimmer.html))
You might want to check out this - my irony meter shows signs of serious overuse. Read it while keeping in mind what *Getty* claims over public domain photos - as well as over copyrighted works by others, over which Getty has no rights to exclude the public from use.
Highsmith voluntarily ceded to “the public all [of her] rights, including copyrights throughout the world,” in the Highsmith Photos. Those Photos therefore are “in the public domain” and may be used – including for profit – “by whoever chooses to do so.” Imposing liability under state law for copying and selling the Highsmith Photos would impermissibly “permit the State to block off from the public something which federal law has said belongs to [it],” namely, the right to use works in the public domain. For this reason, courts since Sears have held that state law liability relating to the copying and sale of unpatented or uncopyrighted goods or works is preempted.
Dastar further demonstrates why state law cannot be used in this way. While the question there concerned the scope of the Lanham Act, rather than preemption of state law, Dastar made clear that “reverse passing off claims [a]re the proper domain of copyright law” and therefore cannot be smuggled into other causes of action, no matter their source. As previously discussed, in Dastar, the Court held that the uncredited copying of a work no longer protected by copyright could not be the subject of a claim under Section 43(a) of the Lanham Act. As in Sears, the Court explained that under copyright law, “the right to copy . . . once a copyright has expired . . . passes to the public,” which may then use the work “at will and without attribution” – and, as in both Sears and Dastar, for a profit. The Supreme Court therefore held that allowing liability under the Lanham Act would impermissibly “create a species of mutant copyright law that limits the public’s federal right to copy and use expired copyrights.” Allowing Plaintiffs here to recover under state law when they could not do so under the Copyright Act would have precisely the same effect. Thus, both state law claims are preempted because they would pose an obstacle to the accomplishment of federal
copyright policy."
Everything that Getty says about Highsmith's state laws claims can and must be said about its own claims of "licensing" via its terms of use for public domain photos.
Let me show what I mean: in the following, I take the same paragraph and replace with Getty's own actions. My replacements are in [square brackets]. Here's what I get:
[Getty argues that] Highsmith voluntarily ceded to “the public all [of her] rights, including copyrights throughout the world,” in the Highsmith Photos. Those Photos therefore[, according to Getty,] are “in the public domain” and may be used – including for profit – “by whoever chooses to do so.” [By its own argument,] imposing liability under contract for copying [,displaying] and selling the Highsmith Photos would impermissibly “permit [Getty] to block off from the public something which federal law has said belongs to [it],” namely, the right to use works in the public domain. For this reason, courts since Sears have held that [contract-based] liability relating to the copying and sale of unpatented or uncopyrighted goods or works is preempted.
Dastar further demonstrates why [contracts] cannot be used in this way. While the question there concerned the scope of the Lanham Act, rather than preemption of [contract], Dastar made clear that “reverse passing off claims [a]re the proper domain of copyright law” and therefore cannot be smuggled into other causes of action, no matter their source. [And yet, this is exactly what Getty is doing, by attempting to expand its rights via a contract saying 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.] As previously discussed, in Dastar, the Court held that the uncredited copying of a work no longer protected by copyright could not be the subject of a claim under Section 43(a) of the Lanham Act. As in Sears, the Court explained that under copyright law, “the right to copy . . . once a copyright has expired . . . passes to the public,” which may then use the work “at will and without attribution” – and, as in both Sears and Dastar, for a profit [or not, as they please]. The Supreme Court therefore held that allowing liability under the Lanham Act would impermissibly “create a species of mutant copyright law that limits the public’s federal right to copy and use expired copyrights.” Allowing [Getty] here to recover [and threaten users with its rights] under [purported contracts] when it could not do so under the Copyright Act would have precisely the same effect. Thus, [Getty's alleged licensing] claims are preempted because they would pose an obstacle to the accomplishment of federal copyright policy."
Without any doubt, Getty's "licensing" does exactly that: attempt to put some non-negotiated contract between the works and the users, such that the users agreeing to it will feel prohibited to do with the works what they may actually be perfectly entitled to do, and subvert the intention of the federal copyright law and policy all along: users were supposed to be able to copy with impunity, without attributing GETTY, "use" the works on their website, etc, without, as Getty's website told me when I tried, being "restricted" to 3 months of "licensed use".
-
Of course, Getty isn't claiming only rights created by contract. There are at least three other things here:
1) in the eyes of users, due to the phrasing, use of the same wizard for "licensing", same "rights managed" expressions with exclusive rights photos, etc, it seems to me Getty is claiming copyright, or at least something users perceive as IP rights (which then, people usually take as copyright);
2) extortion letters clearly say copyright and copyright infringement;
3) Getty's wizards and "licenses" require that users stop "use" after time expires. Even if this shitty contract over public domain works (or other people's works) was valid, I don't see how Getty can get via contract the right to stop people from using the works. Claiming that it can seems to me claiming an IP right.
-
Getty makes various statements in this memo, that it can "license" content and that it is somehow mysteriously not a "copyright license". Like this example:
Getty Images also sells licenses to its customers for the use of Getty Images’ copies of particular images. For a period of time, Getty Images sold licenses to its copies of the Highsmith Photos, with different prices for different sizes and types of uses. While these licenses included “restrictions on usage” of Getty Images’ copies, the exhibits to the FAC make clear that these licenses did not purport to be “copyright licenses” as Plaintiffs allege. Compare FAC ¶ 85 (claiming that “Getty offers for sale on its website copyright licenses for using Highsmith Photos”), with FAC, Ex. K (image of Highsmith Photo previously on Getty Images’
website with license listing but no mention of “copyright”).
I don't have the exhibits, to see what was all about. But this statement is bushwah.
Here's a simple experiment I made in another thread:
http://www.extortionletterinfo.com/forum/getty-images-letter-forum/dmla-makes-a-statement-on-highsmith-v-getty/msg20270/#msg20270
I checked several sites, public domain photos from Getty and this other site that was selling public domain photos in print. The comparison is damning for Getty: the other site, which I named selling public domain images done right, never talks about rights, and intellectual property, and licensing, and restrictions on use.
On Getty's site on the other hand, this is public domain image:
http://www.gettyimages.com/license/114938474
It has "Restrictions: Contact your local office for all commercial or promotional uses."
It's "rights managed". If I click on "Details", I see it's rights managed, and if I click on it, it takes me here:
http://www.gettyimages.com/eula#RM (tested from US, Canada, Sweden, UK)
This is a "Getty Images Content License Agreement", and it has been updated in August 2016 (!). It *STILL* says lots of disturbing stuff, as I noted elsewhere, stuff that tells clearly the reader that they're licensing some content with intellectual property rights attached to it, and severe restrictions of use.
It has a section on Intellectual Property Rights:
"Who owns the content? All of the licensed content is owned by either Getty Images or its content suppliers. All rights not expressly granted in this agreement are reserved by Getty Images and the content suppliers. You may not assert any right to revenue from a collecting society in respect of photocopying, digital copying or other secondary uses of the licensed content."
So let me get this straight: there's no mention of "copyright", only of licensed content and ownership by Getty or its suppliers, which own the "intellectual property rights". Maybe photos are patentable subject matter, lately.
Note that Getty doesn't bother to even *imagine* that, you know, if it's indeed public domain, *no one* owns that content. It pretends there are only two options: Getty or its suppliers own it. So, Highsmith photos fall in which category? Public domain photo linked above falls in which category?
What the user is allowed to do:
"How can I use licensed content? You may use licensed content in any way consistent with the rights granted below and not restricted (see Restricted Uses below). Subject to those restrictions and the rest of the terms of this agreement, the rights granted to you by Getty Images are:"
"Rights Managed/Rights Ready
Limited to the specific use, medium, period of time, print run, placement, size of content, and territory selected, and any other restrictions that accompany the content on the Getty Images website (or any other method of content delivery) or in an order confirmation or invoice. Non-Exclusive, meaning that you do not have exclusive rights to use the content. Getty Images can license the same content to other customers. Exclusive licenses may be available for rights-managed content upon payment of an additional license fee. Please contact Getty Images if you are interested in licensing content on an exclusive basis."
This: "For purposes of this agreement, “use” means to copy, reproduce, modify, edit, synchronize, perform, display, broadcast, publish, or otherwise make use of. " means this agreement is either a copyright license, or otherwise it is conflicting with copyright, by Getty's own argument (second argument, copyright policy, above).
(in the next post I'll copy out here publicly the whole text. It exceeds 20k characters lol)
-
Here's the full license. Just in case:
(emphasis added; emphasis marks the things said by this agreement which imply or explicitly say there are IP rights being "licensed")
(part 1 ;D)
GETTY IMAGES CONTENT LICENSE AGREEMENT
LAST UPDATED: August 2016
This is a license agreement between you and Getty Images that explains how you can use photos, illustrations, vectors, and video clips (individually and collectively, “content”) that you license from Getty Images. By downloading content from Getty Images, you accept the terms of this agreement.
What types of licenses does Getty Images offer? Getty Images offers three types of license models: royalty-free (“RF”), rights-ready (“RR”) and rights-managed (“RM”). Royalty-free does not mean there is no cost for the license. Instead, royalty-free means that the license fee is paid once and there is no need to pay additional royalties if the content is re-used. Royalty-free content is licensed for unlimited, perpetual use, and pricing is based on the file size. Rights-managed and rights-ready content is licensed for specific types of use, and pricing is based on factors such as size, placement, duration of use, and geographic distribution.
Comp license: You are welcome to use content from the Getty Images site on a complimentary basis for test or sample (composite or comp) use only, for up to 30 days following download. However, unless a license is purchased, content cannot be used in any final materials or any publicly available materials. No other rights or warranties are granted for comp use.
How can I use licensed content? You may use licensed content in any way consistent with the rights granted below and not restricted (see Restricted Uses below). Subject to those restrictions and the rest of the terms of this agreement, the rights granted to you by Getty Images are:
Royalty-Free
Perpetual, meaning there is no expiration or end date on your rights to use the content. Worldwide, meaning content can be used in any geographic territory. Unlimited, meaning content can be used an unlimited number of times. Any and all media, meaning content can be used in print, in digital or in any other medium or format. Non-Exclusive, meaning that you do not have exclusive rights to use the content. Getty Images can license the same content to other customers. If you would like exclusive rights to use royalty-free content, please contact Getty Images to discuss a buy-out.
Rights-Managed/Rights-Ready
Limited to the specific use, medium, period of time, print run, placement, size of content, and territory selected, and any other restrictions that accompany the content on the Getty Images website (or any other method of content delivery) or in an order confirmation or invoice. Non-Exclusive, meaning that you do not have exclusive rights to use the content. Getty Images can license the same content to other customers. Exclusive licenses may be available for rights-managed content upon payment of an additional license fee. Please contact Getty Images if you are interested in licensing content on an exclusive basis.
For purposes of this agreement, “use” means to copy, reproduce, modify, edit, synchronize, perform, display, broadcast, publish, or otherwise make use of. Please make sure you read the Restricted Uses section below for exceptions.
Restricted Uses.
No Unlawful Use. You may not use content in a pornographic, defamatory or other unlawful manner, or in violation of any applicable regulations (including for sports content, any restrictions or credentials issued by a sports league or governing body) or industry codes.
No Commercial Use of Editorial Content. Unless additional rights are specified on the Getty Images invoice or sales order, or granted pursuant to a separate license agreement, you may not use content marked “editorial” for any commercial, promotional, advertorial, endorsement, advertising or merchandising purpose. This type of content is not model or property released and is intended to be used only in connection with events or topics that are newsworthy or of general public interest.
No Alteration of Editorial Content. Content marked “editorial” may be cropped or otherwise edited for technical quality, provided that the editorial integrity of the content is not compromised, but you may not otherwise alter the content.
No Standalone File Use. You may not use content in any way that allows others to download, extract, or redistribute content as a standalone file (meaning just the content file itself, separate from the project or end use).
No Sensitive Use Without Disclaimer. If you use content that features models or property in connection with a subject that would be unflattering or unduly controversial to a reasonable person (for example, sexually transmitted diseases), you must indicate: (1) that the content is being used for illustrative purposes only, and (2) any person depicted in the content is a model. For example, you could say: “Stock photo. Posed by model.” No disclaimer is required for content marked “editorial” that is used in a non-misleading editorial manner.
No False Representation of Authorship. You may not falsely represent that you are the original creator of a work that is made up largely of licensed content. For instance, you cannot create artwork based solely on licensed content and claim that you are the author.
Collection Specific Restrictions. If you are licensing content from the following collections, please click here for additional restrictions: Digital Globe; BBC Motion Gallery; NBA.
Restricted Uses - unless additional license purchased. The following are prohibited without the prior written consent of Getty Images and payment of an additional license fee:
No “On Demand” Products. Unless you purchase a custom license, you may not use content in connection with "on demand" products (e.g., products in which a licensed image is selected by a third party for customization of such product on a made-to-order basis), including, without limitation, postcards, mugs, t-shirts, calendars, posters, screensavers or wallpapers on mobile telephones, or similar items (this includes the sale of products through custom designed websites, as well as sites such as zazzle.com and cafepress.com).
No Electronic Templates. Unless you purchase a custom license, you may not use content in electronic or digital templates intended for resale or other distribution (for example, website templates, business card templates, electronic greeting card templates, and brochure design templates).
No Use in Trademark or Logo. Unless you purchase a custom license, you may not use content as part of a trademark, design mark, tradename, business name, service mark, or logo.
Who, besides me, can use the licensed content? The rights granted to you are non-transferable and non-sublicensable, meaning that you cannot transfer or sublicense them to anyone else. There are two exceptions:
Employer or client. If you are purchasing on behalf of your employer or client, then your employer or client can use the content. In that case, you represent and warrant that you have full legal authority to bind your employer or client to the terms of this agreement. If you do not have that authority, then your employer or client may not use the content. The rights purchased may only belong to you or your employer/client, depending on who is named as the “Licensee” at the time of purchase. In other words, if you purchase a royalty-free image, only one of you (and not both) may re-use that image for multiple projects.
Seat/User Restrictions for RF Content. Please note that seat/user restrictions apply for royalty-free content. You may store licensed royalty-free content in a digital library, network configuration or similar arrangement to allow the licensed royalty-free content to be viewed by your employees and clients, so long as there are no more than 10 users total (not at any given time). If you require content be available to more than 10 users, please contact Getty Images to purchase additional seat licenses.
No Seat/User Restrictions for UltraPacks. If you purchase an UltraPack, seat license restrictions do not apply and an unlimited number of users within the same organization may use licensed content.
Subcontractors. You may allow subcontractors (for example, your printer or mailing house) or distributors to use content in any production or distribution process related to your final project or end use. These subcontractors and distributors must agree to be bound by the terms of this agreement and may not use the content for any other purpose.
User Accounts. You will be responsible for tracking all activity for each user account, and you agree to: (a) maintain the security of all passwords and usernames; (b) notify Getty Images immediately of any unauthorized use or other breach of security; and (c) accept all responsibility for activity that occurs under each user account. Getty Images reserves the right to monitor downloads and user activity to ensure compliance with the terms of this agreement. If Getty Images determines that you are in breach of this or any other term of this agreement, it may suspend access to your account and seek further legal remedies.
-
(part 2)
Intellectual Property Rights.
Who owns the content? All of the licensed content is owned by either Getty Images or its content suppliers. All rights not expressly granted in this agreement are reserved by Getty Images and the content suppliers. You may not assert any right to revenue from a collecting society in respect of photocopying, digital copying or other secondary uses of the licensed content.
Attribution.
Do I need to include a photo credit? You do not need to include a photo credit for commercial use, but if you are using content for editorial purposes, you must include the following credit adjacent to the content or in production credits: “[Photographer Name]/[Collection Name]/Getty Images”
Do I need to include a video credit? If licensed content is used in an audio/visual production where credits are accorded to other providers of licensed material, you must include the following credit in comparable size and placement: “[Video] [Imagery] supplied by [Artist Name]/[Collection Name]/Getty Images”
Can I use the Getty Images name or logo, or the name and logos of its content suppliers? You may use the name of Getty Images and/or its content suppliers as necessary to give attribution, but you may not otherwise use their names, logos, or trademarks without prior written approval.
Termination/Cancellation/Withdrawal.
Termination. Getty Images may terminate this agreement at any time if you breach any of the terms of this or any other agreement with Getty Images, in which case you must immediately: cease using the content; delete or destroy any copies; and, if requested, confirm to Getty Images in writing that you have complied with these requirements.
Social Media Termination. If you use the content on a social media platform or other third party website and the platform or website uses (or announces that it plans to use) the content for its own purpose or in a way that is contrary to this agreement, the rights granted for such use shall immediately terminate, and in that event, upon Getty Images’ request, you agree to remove any content from such platform or website.
Refunds/Cancellation. All requests for refunds/cancellations must be made in writing or using the cancellation function on the Getty Images’ website. Provided that the request is made within 7 days and the licensed content has not been used, Getty Images may cancel the relevant order and issue a full refund to your account or credit card. No credits or refunds are available for cancellation requests received more than 7 days from your receipt of content, or for research, lab, service or subscription fees, all of which are non-refundable. In the event of cancellation, your rights to use the content terminate, and you must delete or destroy any copies of the content.
Content Withdrawal. Getty Images may discontinue licensing any item of content at any time in its sole discretion. Upon notice from Getty Images, or upon your knowledge, that any content may be subject to a claim of infringement of a third party’s right for which Getty Images may be liable, Getty Images may require you to immediately, and at your own expense: cease using the content, delete or destroy any copies; and ensure that your clients, distributors and/or employer do likewise. Getty Images will provide you with replacement content (determined by Getty Images in its reasonable commercial judgment) free of charge, subject to the other terms of this agreement.
Representations and Warranties. Getty Images makes the following representations and warranties:
Warranty of Non-Infringement. For all licensed content (excluding content marked “access only”), Getty Images warrants that your use of such content in accordance with this agreement and in the form delivered by Getty Images (that is, excluding any modifications, overlays or re-focusing done by you) will not infringe on any copyrights or moral rights of the content owner/creator.
Additional Warranties for Certain Content.
RF: For licensed royalty-free content (excluding content marked “editorial”), Getty Images warrants that your use of such content in accordance with this agreement and in the form delivered by Getty Images (that is, excluding any modifications, overlays or re-focusing done by you) will not infringe on any trademark or other intellectual property right, and will not violate any right of privacy or right of publicity.
RM/RR: For licensed rights-managed and rights-ready content where Getty Images specifically notifies you that a model and/or property release has been obtained, Getty Images warrants that your use of such content in accordance with this agreement and in the form delivered by Getty Images (that is, excluding any modifications, overlays or re-focusing done by you) will not, where a property release has been obtained, infringe on any trademark or other intellectual property right and/or will not, where a model release has been obtained, violate any right of privacy or right of publicity.
Warranty Disclaimer. Unless specifically warranted above, Getty Images does not grant any right or make any warranty with regard to the use of names, people, trademarks, trade dress, logos, registered, unregistered or copyrighted audio, designs, works of art or architecture depicted or contained in the content. In such cases, you are solely responsible for determining whether release(s) is/are required in connection with your proposed use of the content, and you are solely responsible for obtaining such release(s). You acknowledge that no releases are generally obtained for content identified as “editorial,” and that some jurisdictions provide legal protection against a person’s image, likeness or property being used for commercial purposes when they have not provided a release. You are also solely responsible for payment of any amounts that may be due under, and compliance with any other terms of, any applicable collective bargaining agreements as a result of your use of the licensed content.
Caption/Metadata Disclaimer. While Getty Images has made reasonable efforts to correctly categorize, keyword, caption and title the content, Getty Images does not warrant the accuracy of such information, or of any metadata provided with the content.
No Other Warranties. Except as provided in this section above, the content is provided “as is” without representation, warranty or condition of any kind, either express or implied, including, but not limited to, implied representations, warranties or conditions of merchantability, or fitness for a particular purpose. Getty Images does not represent or warrant that the content or its websites will meet your requirements or that use of the content or websites will be uninterrupted or error free.
Indemnification/Limitation of Liability.
Indemnification of Getty Images by you. You agree to defend, indemnify and hold harmless Getty Images and its parent, subsidiaries, affiliates, and content suppliers, and each of their respective officers, directors and employees from all damages, liabilities and expenses (including reasonable outside legal fees) arising out of or in connection with (i) your use of any content outside the scope of this agreement; (ii) any breach or alleged breach by you (or anyone acting on your behalf) of any of the terms of this or any other agreement with Getty Images; and (iii) your failure to obtain any required release for your use of content.
Indemnification of you by Getty Images. Provided that you are not in breach of this or any other agreement with Getty Images, and as your sole and exclusive remedy for any breach of the warranties set forth in Section 8 above, Getty Images agrees, subject to the terms of this Section 9, to defend, indemnify and hold harmless you, your corporate parent, subsidiaries and affiliates, and each of your respective officers, directors and employees from all damages, liabilities and expenses (including reasonable outside legal fees) arising out of or in connection with any breach or alleged breach by Getty Images of its warranties in Section 8 above. This indemnification does not apply to the extent any damages, costs or losses arise out of or are a result of modifications made by you to the content or the context in which the content is used by you. This indemnification also does not apply to your continued use of content following notice from Getty Images, or upon your knowledge, that the content is subject to a claim of infringement of a third party’s right.
The party seeking indemnification must promptly notify in writing the other party about the claim. The indemnifying party (the one covering the costs) has the right to assume the handling, settlement or defense of any claim or litigation. The indemnified party (the one not covering the costs) has to cooperate in any way reasonably requested by the indemnifying party. The indemnifying party will not be liable for legal fees and other costs incurred prior to the other party giving notice of the claim for which indemnity is sought.
Limitation of Liability. GETTY IMAGES WILL NOT BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY LOST PROFITS, PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR OTHER SIMILAR DAMAGES, COSTS OR LOSSES ARISING OUT OF THIS AGREEMENT, EVEN IF GETTY IMAGES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR LIABILITY.
General Provisions.
Assignment. This agreement is personal to you and is not assignable by you without Getty Images’ prior written consent. Getty Images may assign this agreement, without notice or consent, to any corporate affiliate or to any successor in interest, provided that such entity agrees to be bound by these terms.
Audit. Upon reasonable notice, you agree to provide to Getty Images sample copies of projects or end uses that contain licensed content, including by providing Getty Images with free of charge access to any pay-walled or otherwise restricted access website or platform where content is reproduced. In addition, upon reasonable notice, Getty Images may, at its discretion, either through its own employees or through a third party, audit your records directly related to this agreement and your use of licensed content in order to verify compliance with the terms of this agreement. If any audit reveals an underpayment by you to Getty Images of five percent (5%) or more of the amount you should have paid, then in addition to paying Getty Images the amount of the underpayment and any other remedies to which Getty Images is entitled, you also agree to reimburse Getty Images for the costs of conducting the audit.
Electronic storage. You agree to retain the copyright symbol, the name of Getty Images, the content’s identification number and any other information or metadata that may be embedded in the electronic file containing the original content, and to maintain appropriate security to protect the content from unauthorized use by third parties. You may make one (1) copy of the content for back-up purposes.
Governing Law/Arbitration. This agreement will be governed by the laws of the State of New York, U.S.A., without reference to its laws relating to conflicts of law. Any disputes arising from or related to this agreement shall be finally settled by binding, confidential arbitration by a single arbitrator selected using the rules and procedures for arbitrator selection under the JAMS’ Expedited Procedures in its Comprehensive Arbitration Rules and Procedures (“JAMS”) or of the International Centre for Dispute Resolution ("ICDR") in effect on the date of the commencement of arbitration (the applicable rules to be at your discretion) to be held in one of the following jurisdictions (whichever is closest to you): Seattle, Washington; New York, New York; Chicago, Illinois; Los Angeles, California; London, England; Paris, France; Munich, Germany; Madrid, Spain; Milan, Italy; Sydney, Australia; Tokyo, Japan; or Singapore. The arbitration proceedings shall be conducted in English and all documentation shall be presented and filed in English. The decision of the arbitrator shall be final and binding on the parties, and judgment may be entered on the arbitration award and enforced by any court of competent jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not govern this agreement. The prevailing party shall be entitled to recover its reasonable legal costs relating to that aspect of its claim or defense on which it prevails, and any opposing costs awards shall be offset. Notwithstanding the foregoing, Getty Images shall have the right to commence and prosecute any legal or equitable action or proceeding before any court of competent jurisdiction to obtain injunctive or other relief against you in the event that, in the opinion of Getty Images, such action is necessary or desirable to protect its intellectual property rights. The parties agree that, notwithstanding any otherwise applicable statute(s) of limitation, any arbitration proceeding shall be commenced within two years of the acts, events or occurrences giving rise to the claim.
Severability. If one or more of the provisions in this agreement is found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions should not be affected. Such provisions should be revised only to the extent necessary to make them enforceable.
Waiver. No action of either party, other than express written waiver, may be construed as a waiver of any provision of this agreement.
Entire Agreement. No terms of conditions of this agreement may be added or deleted unless made in writing and accepted in writing by both parties, or issued electronically by Getty Images and accepted by you. In the event of any inconsistency between the terms of this agreement and the terms contained on any purchase order sent by you, the terms of this agreement will apply.
Notice. All notices required to be sent to Getty Images under this agreement should be sent via email to [email protected]. All notices to you will be sent via email to the email set out in your account.
Taxes. You agree to pay and be responsible for any and all sales taxes, use taxes, value added taxes, withholding taxes, and duties imposed by any jurisdiction as a result of the license granted to you, or of your use of the licensed content.
Interest on Overdue Invoices. If you fail to pay an invoice in full within the time specified, Getty Images may add a service charge of 1.5% per month, or such lesser amount as is allowed by law, on any unpaid balance until payment is received.
Licensing Entity. The Getty Images licensing entity under this agreement is determined based on your billing address in accordance with the chart found here.
-
See also this topic:
http://www.extortionletterinfo.com/forum/getty-images-letter-forum/getty-images-and-lcs
When the user asked Getty/LCS for a proof they have copyright rights over the content, the answer was:
1. Proof of Getty Images’ right to manage the image
Please visit our website at www.gettyimages.com and enter the image number for the image in question xxxx into the search field. When you have searched and found the image, please click on the thumbnail image. This will open the image in a new window, at which point you will be able to read the details on the image. Please click “Rights-managed” in this window (under “License type: Rights-managed” in the navigation panel to the right).
The Getty Images Editorial, Rights-Managed and Rights-Ready Image and Video License Agreement will open up. We direct your attention to sections 5 and 6. Section 5(ii) is Getty Images’ warranty that it represents the image. In section 6, Getty Images indemnifies the licensee for any claims of copyright infringement.
These two sections confirm that Getty Images is legally entitled to manage the image.
Really? Well, I did that with a public domain image (http://www.gettyimages.com/license/114938474), and I see the same results as Getty told the user: I get a License Agreement, for Rights Managed images among others, and while the section numbering doesn't fit (agreement was updated recently), I read similar sections: Getty and suppliers allegedly own the image, they warrant that the licensee's use in accord with this agreement will not infringe copyright rights of others, and indemnifies the licensee in case it does.
"These two sections confirm that Getty Images is legally entitled to manage the image."
If Getty is serious - and I assume it is -, then it seems to be saying that it's entitled to exclusive rights over Highsmith's photos and public domain photos alike. These sections, by its own words, are the proof that Highsmith needs, that it is indeed claiming that.
-
Just for the sake of it, I made perma.cc links to:
http://perma.cc/B9B9-DU8F = public domain image licensed by Getty
http://perma.cc/ARN6-U5PN = the license agreement you get when you click on "Rights managed" link, which says "all content is owned by Getty or its suppliers" and contains "copyright", "intellectual property rights" info, and the warranties made by Getty that it uses in extortion letters to prove it has rights to pursue alleged infringements.
Agreement has been updated in August 2016, it says. I'm frankly shocked to see that an update exists, now with these lawsuits, Zuma and Highsmith, and Getty doesn't seem to give a damn - it still publicly says it owns intellectual property rights, while filing a memorandum in court that says "oh but we don't say copyright".
-
You folks may want to watch this unbelievable statement of Getty's memorandum:
(internal quotations removed, my emphasis)
As noted, Plaintiffs complain extensively of a single letter that Defendant LCS sent to Plaintiff TIA on behalf of Defendant Alamy – and not on behalf of Getty Images – allegedly asserting copyright interests in a particular Highsmith Photo. Although the letter and the alleged communications surrounding it had nothing to do with Getty Images and thus are irrelevant here, Plaintiffs allege that LCS is an “alter ego[]” of Getty Images, such that the allegations against LCS “should be interpreted to include Getty . . . as appropriate.” However, these alter ego allegations are wholly conclusory and should be disregarded. Two elements are required to pierce the corporate veil: (1) the parent must exercise “complete domination” over the subsidiary “with respect to the transaction at issue,” and (2) “such domination was used to commit a fraud or wrong that injured the party seeking to pierce the veil.” Multiple factors are relevant to piercing the corporate veil.
Adequately pleading an alter ego theory requires far more than merely asserting that the defendants share some officers and resources, which is all that Plaintiffs have done here.
This is Getty saying like, we just share some officers and resources, but we're not the same entity and the letters sent by LCS over years - oh lets ignore those - when LCS wasn't even incorporated, we don't know from whom they were, we just paid the people sending them.
How about this job posting on LinkedIn:
https://www.linkedin.com/m/job/134299647/
"right hand of the Director of LCS", among others.
-
http://www.ukbusinessforums.co.uk/threads/lcs-global-copyright-infringement.352332/
"License Compliance Services, Inc.
101 Bayham Street
London NW1 0AG, United Kingdom
Email: [email protected], Telephone: 0800 376 2514, www.LCS.global"
A commentator notes:
"LCS UK registered office is the same as Getty Images in London. A Google search of LCS and Getty together brings some interesting reading. "
So not only in Seattle, offices are the same. (if confirmed)
-
If it was necessary..
http://lcs.global.cutestat.com/
DNS: dns01.gettyimages.com, etc
Sites hosted at the same IP: gettyimages.com
-
About the public domain images that Getty sells as "rights managed" but tells the court that it's not about copyright:
Here are example extortion letters where Getty/LCS says:
"A valid license is required prior to publicly displaying any Rights Managed (RM) image on a website. You do not have a valid license to use the images in question. All it takes for you to infringe is to post a rights managed image publicly without a valid license."
That, by Getty's own words, includes the public domain images it's "licensing".
https://kjfarnham.com/tag/koleta-vee/
http://cakeniron.com/2016/08/09/the-tiger-post-how-copyright-trolls-are-ruining-ideas-pt-1-intro/
-
Engel Nyst - I love the work you do here. My hope is that everyone with a court case against Getty, LCS, et al uses it to put these companies in their proper place - bankruptcy court.
-
Trivia:
Carol Highsmith's attorneys are http://www.giocondalaw.com/?p=26
Specialized in trademarks, brand management, anti-counterfeiting.
Getty's lawyers are:
https://jenner.com/people/KennethDoroshow formerly RIAA's lawyer in peer-to-peer cases, if I understand correctly;
https://jenner.com/people/EricaRoss
https://jenner.com/people/ScottWilkens, represented big media against Aereo, and Viacom against YouTube.
/justcurious
-
[Thank you, stinger. Yes, I hope the same.
Since I'm on mobile, I can't analyze stuff at the moment, just scouring the internet]
A commentator here:
https://nctritech.wordpress.com/2008/11/04/the-getty-images-extortion-scheme/#comment-9344
Natureboy2014 on August 30, 2014 at 11:06 am
"The letter I received was not a letter in the mail but an email from License Compliance Services for Design Pics Inc. I looked up the company Design Pics Inc they are based out of Canada and are not owned by Getty Images. [...] My website was developed by a Web Design company based in India. I have no idea that about this. I am not a website developer I run an educational program that I just started and have not even made a single penny in revenue but have spent thousands in opening costs for this program. After they sent me the email i forwared the email to the Web Design Company an they promptly took the picture down to be safe and they are saying that this is a scam because they say the picture in question was part of an advertising campaign (called “Incredible India”run by the Government of India, Ministry of Tourism, and this picture was one of the pictures released in a Media Kit (they sent me the link) by the Government of India to be freely used by companies in their ads in print or online media to promote tourism to India. Government of India gave out CD’s of these pictures with Incredible India logo on them and without. So how can Design Pics claim they have rights to this picture. The email they sent me also had a link to promply make the payment of $600.00 through credit card and they said you can make the payment through bank account and the shady part is that the name on the bank account says Picscout, which is a company based in Isreal and the bank account is in Florida. So a company based in Canada claims they have copyrights to a picture released by Govenment of India media kit and then a company based in Seattle, Washington,US, called “License Compliance Services sends me an email and wants me to pay $600.00 in settlement amount, with a bank account which belongs to Picscout a company in Isreal?? This is shady ?? And then 3 days ago they called and left me a voicemail. Please advise.. I am not going to email or return their calls.."
IOW, LCS sent a letter (on behalf of some apparently Canadian company), and demanded payment in a bank account owned by ... Picscout.
(I know this is an anonymous comment somewhere, but maybe a research on similar facts confirms them.)
-
Source: https://nctritech.wordpress.com/2008/11/04/the-getty-images-extortion-scheme/#comment-581
Bigotes on September 12, 2011 at 11:10 pm
I just received letter number two. Although I had consciously selected a non-copy righted photo, Getty’s letters made me think perhaps I had made a mistake. With letter number two on the desk, my partner checked the source code of the original image copy and lo and behold, we discovered that it was tagged “public domain” as of the date we incorporated the image into the website.
I am curious to know Getty’s response to my request for proof of copyright and comment on the fact that image we used was tagged “public domain”.
Anyone encounter that slimy twist?"
I wish we knew what image was this one: commentator says it "was tagged public domain"!
-
[this one is interesting b/c according to more than a few, GoDaddy has/had a license to some stock photos, for unlimited use of their customers, included in their site builder. LCS still goes after those customers with terrible first letter; some users may remember where did the pic come from and ask GoDaddy, some may not]
http://www.clublexus.com/forums/the-clubhouse/766520-be-careful-who-you-try-to-scam-2.html#post9388257
My recent scam attack is regarding my website. I have a website with go daddy. I used a background picture that was an option when I created the site. Now I have a scammer telling me I have used an unauthorized copyrighted picture. I called Go Daddy and they said yes this is a scam and ignore it. I received a letter in the mail from this company so I decided to research them. There are sites dedicated to this scamming company and they are looking for people who are easily intimidated. They come up with a random dollar figure to settle and if you don't pay, they intimidate with a potentially higher expense.
NEVER, NEVER trust anyone who calls or emails you....
Who can we trust .... Feel free to call or email me with solutions and I will happily contribute funds
Quote:
License Compliance Services, Inc. on behalf of SuperStock
701 Fifth Avenue, Suite 4200
Seattle, WA 98104, United States
Email: [email protected], Telephone: +1 855 387 8725, [scammer URL]
February 8, 2016
OFFICIAL COMMUNICATION - Case Number: 384837328
_________________________________________________
1. Our represented imagery is/was used on your website.
2. Our records do not show a valid license for this use of our imagery.
Your action is required within 10 business days to resolve this matter:
Send us your valid license / authorization ([email protected])
Or settle online: [scammer URL]
For inquiries, call: +1 855 387 8725
More details can be found below.
Attn: xxxxxxxxxxx
SuperStock, a global provider of digital imagery, has become aware of an instance(s) of its represented imagery being used on your company's website. Our records do not indicate that valid licensing has been issued to your company for the use of the image(s). If your company does in fact hold a valid license(s) for the image(s) in question, please email any relevant documentation (valid license, purchase records, documentation of authorization). We will review your documentation and update our records if appropriate.
This letter has been sent to you by License Compliance Services, Inc. ("LCS"), a company that specializes in assisting copyright holders with the management and protection of their content. With regards to this case, SuperStock has mandated LCS to resolve the matter of your online use of SuperStock's imagery.
Use of imagery represented by SuperStock without proper licensing is considered copyright infringement and entitles SuperStock to pursue compensation for infringing uses (Copyright Act, Title 17, United States Code).
To view the image(s) in question together with proof evidencing your use of these images on your website, go to: [scammer URL]
As an example, see below SuperStock's image "1042R-8425" as used on your website:
Original image
Proof of use
TO RESOLVE THIS MATTER - (Case Number: 384837328)
You are required to take action within 10 business days of the date of this email, as follows:
If your company possesses a valid license(s) or other authorization for the use of the imagery, please email license purchase and/or authorization documentation to [email protected] and we will close this case (upon verification of the documentation by SuperStock).
If your company does not hold a valid license(s) or other authorization for the use of the imagery, you must:
Submit a settlement payment in the amount of $740.00 (payment options are provided below).
Immediately cease use of the image(s) in question.
PAYMENT OPTIONS
Online payment: You may submit payment online at:
[scammer URL]
Check payment: You may send payment by check to:
License Compliance Services, Inc.
701 Fifth Avenue, Suite 4200, Seattle, WA 98104, United States
Please include Reference 7554-0924-3616 with check payment.
IMPORTANT NOTES
Discontinuance of use of the imagery does not release your company of its obligation to pay compensation for the imagery previously used. Past usage must still be paid for.
You may have been unaware that this imagery was subject to license. However, copyright infringement can occur regardless of knowledge or intent. While being unaware of license requirements is unfortunate, it does not change liability. As the site owner you are still the responsible party, even if a third party is involved in the unlicensed use.
You may find further information in the FAQ section at [scammer URL]
If you would like to continue to use the imagery in question, or if you have other requests in relation to this letter, please contact us by email at [email protected], or call +1 855 387 8725 and we will assist you.
This letter is without prejudice to SuperStock's rights and remedies, all of which are expressly reserved.
Sincerely,
License Compliance Services
[email protected]
-
LCS = Picscout:
Payment has to be remitted to:
License Compliance Services, Picscout Inc.
605 Fifth Avenue South, Suite 400, Seattle, WA 98104, United States"
Source: http://www.ndcenterfornursing.org/wp-content/uploads/2015/02/Cartoon-Stock-License-Compliance-Services.docx
-
PS: there are actually many of these, showing a link between who signs as "LCS" (with their logo or Getty's address(es), so no false positive) and Picscout: demanding payment in Picscout account and/or common signature. They seem to start in 2014 (when did Getty buy Picscout?) but most seem to be, from what I see, in 2015 and 2016.
Like this:
http://www.extortionletterinfo.com/forum/getty-images-letter-forum/extortion-letter-received-from-lcs-picscout/
About LCS and Picscout:
from picscout:
The PicScout Platform is the industry leader in commercial image identification technology. Our registry houses 200 million premium images from more than 200 content providers. Content providers can upload premium images to the PicScout Platform to ensure they are accessible and protected by the PicScout-powered tools.
PicScout Licensing, Metadata and Compliance services are all integrated with the PicScout API.
Note: once content has been submitted to the PicScout Platform, content providers will have the ability to opt-in to activating their content within the PicScout Licensing, Metadata and Compliance services.
and this from : http://www.picscout.com/solutions/ete/
Now this technology has been combined with global License Compliance specialists in the PicScout EtE Service. When you subscribe to this service, PicScout not only will identify where your images are being used, but also enlist the skills of its global License Compliance team to ensure any unlicensed images are removed and your lost revenue recovered.
-
lol love this: internet commentator talked to LCS at Picscout's phone number:
"Dana 2016-01-05 23:00:26
Hi Soloma,
Thanks for sharing your story. It sounds just like mine. I was just sent a letter from LCS back in December demanding $825 for one photo that I, too, found on the Internet. I replied back demanding all kinds of proof, so Samantha Clemens sent bogus attachments that were suppose to prove ownership. Anyone could have written them and there were no dates, etc. Neither document looked professional.
So, I called Gallery Stock who LCS is "representing". I spoke to a girl in the sales department. I said I was writing a paper on copyright infringement. She said they only work with PicScout. She said they don’t work with any other affiliated companies (i.e. License Compliance Services, Gettys, etc.). I asked if they were able to collect on their behalf and she said no. They bring it to their legal departments attention first. She didn’t know all aspects of it, but felt she gave me the correct information.
Then I reviewed PicScout's website and I noticed it had the same phone number as all of the other collectors out there. So, I called PicScout’s number and the lady answered License Compliance. I told her I was writing a paper for school and I was looking for information on the topic of copyright infringement. I said, I thought I was calling PicScout and asked if PicScout was affiliated with them. She said that was confidential information and she was not at liberty to say. Then I said they had the same number. She repeated the number back to me and I said yes, that’s on PicScout’s website. She then said License Compliance is taking over PicScout. I asked if they were going to change their website and she said that was again confidential. I said ok, thank you for your time.
Really? Why is that confidential? The whole thing was so shady. To cover my bases, I then decided to go to the artist’s website and try contacting him about the photo I was interested in using. I didn’t say anything about the current situation of copyright infringement, but that I was interested in using the photo. I asked if he would give me permission, since I am on a tight budget. I told him I would keep his name on the photo and even provide a link to his website. I am not sure if he or anyone else will respond, but I thought it was worth a shot and to try covering all of my bases.
After looking up extensive information on LCS, Getty, PicScout, etc., I decided that I would not respond again. Most people seem to respond once and then ignore the rest of the letters. It seems they will stop after a while. I am hoping that will be the case for me too or that I will get permission from photographer to use the photo so they will leave me alone. We will see what happens next."
Also, she talked to Gallery Stock who LCS claimed to "represent", and was told that they only work with Picscout, didn't know of a *different* company called LCS.
IOW, either LCS was misleading people claiming to be licensing agent, either LCS is part/subsidiary of the same corporation with Picscout.
http://salomafurlong.com/aboutamish/2015/06/bloggers-beware/
The OP's extortion letter is like many others: signed by LCS, Picscout, with payment demanded to Picscout, and Getty corporate address.
http://salomafurlong.com/files/alamy_letter.pdf
-
Getty isn't limiting itself to "licensing" public domain and some photographers' images without permission to do so. It "licenses" and threatens users over "infringements" of Microsoft's imagery included in Windows.
Interestingly, a thread on this forum discussed that back in 2009, but oddly the old discussion seems to assume that those images were licensed by Microsoft from Getty. I don't know why. (Maybe back then one couldn't yet believe that Getty might very well be talking bs?)
http://www.extortionletterinfo.com/forum/getty-images-letter-forum/windows-vista-sample-images/
In 2015, here's the answer to Getty from someone who discovered the image his company was extorted for, in Vista:
"I spoke with the designer that created the video and all became very clear and I am afraid makes your company look very silly indeed.
The image used in the site and in the demo is a standard Windows Vista sample image. Simply type in “windows vista sample pictures” into Google and you’ll see it.[...]
Now, correct me if I’m wrong, but if I read the following paragraph (from http://windows.microsoft.com/en-us/windows-live/microsoft-services-agreement)
'images, clip art, animations, sounds, music, video clips, templates, and other forms of content (“media elements”) provided with the software available on Office.com or as part of services associated with the software. You may copy and use the media elements in projects and documents.'
[...]Our use of this image did NOT infringe on your copyright and in any event it is NOT your copyright anyway and the image came from a Microsoft freely available source.
Furthermore, and despite my in depth knowledge of the web, I count myself as naive in this regard, imagine my surprise when I typed “Getty Images Copyright Letter” and I see thousands of results regarding “scams” and “harassment”. This really clarifies a great deal about your approach to us.
I want to thank you for your assistance in helping me determine where these images came from and I hereby retract my offer to buy a license for this image from you.
I further want to make this very clear:
Getty will cease and desist from harassing my company immediately. What you are doing is outright extortion and the next correspondence you will send me, if you can be bothered, is an apology and confirmation that you are idiots who cannot even figure out that an image is taken from a sample images folder and not used in any way that contravenes a Microsoft EULA."
Source:
https://www.linkedin.com/pulse/image-copyright-infringement-getty-images-scam-letter-franco-de-bonis
-
Engel Nyst, thank you for these postings. Very interesting. Some of it is hard to understand for a layman like me, but hey, that's why we have lawyers!
-
I reviewed Getty's current license agreement, which they use for all photos apparently, including the public domain photos. In the post (http://www.extortionletterinfo.com/forum/getty-images-letter-forum/getty-answered-to-carol-highsmith/msg20343/#msg20343) where I copied this agreement (and next post), I made bold the words which obviously explicitly claim or imply IP rights.
Those are statements from Getty that may be useful to debunk Getty's strange claim to the court that their purported license "doesn't say copyright". It does say copyright even, once, it does say intellectual property rights (and for several reasons it's clear that's copyright), it does enumerate the exact rights under copyright (copy, reproduce, display, perform, modify), and it does make claims that cannot - IMO - be understood or stand unless they're backed by copyright.
To be sure, this is now the new license, from August 2016, but I'm sure a lot of it is identical with the past license, which Highsmith and Zuma lawyers have by now.
-
I dealt here with only the first half of what I called (http://www.extortionletterinfo.com/forum/getty-images-letter-forum/getty-answered-to-carol-highsmith/msg20335/#msg20335) part 3) of Getty's answer: the state law claims, from the perspective of whether they're restating the same claim as a copyright claim or not. There's more to Getty's answer, when they say that the exact elements of these laws wouldn't be fulfilled for Getty's behavior. Here's an interesting one:
(citations sources omitted)
As the Second Circuit has explained, “the gravamen of” a claim under Section 349 “must be consumer injury or harm to the public interest.” Indeed, the statute is “modelled after the Federal Trade Commission Act,” and “federal courts have interpreted the statute’s scope as limited to the types of offenses to the public interest that would trigger Federal Trade Commission intervention under 15 U.S.C. § 45
Here, Plaintiffs have failed to allege any direct harm to the public interest. See FAC 256-260 (alleging that Getty Images’ acts have “cause[d] economic damages and irreparable injury to Ms. Highsmith and the Foundation,” without alleging any direct harm to the public).
There is harm to the public, and a significant one at that. It is the public who is affected most by the deceptive practices (as Rothman firm put it in their older case (http://www.extortionletterinfo.com/forum/getty-images-letter-forum/schneider-rothman-v-getty-images-lawsuit/) against Getty), because they will believe Getty's purported "rights" over the photos, and buy licenses or settle extortion letters for worry that Getty's lawyers might be entitled to pretend what they do.
On this site, and in recent years many others as well, Getty's practices have been called "legalized extortion". But if Getty insists that it's "licensing" what it knew too well that it's public domain imagery, those practices become something else: namely, I'm not so sure I'd call them legalized anymore, when people are being chased with letters claiming "infringement" to pay up or else. At least, if Getty was honestly convinced they own them, lets say we'd be still in the "legalized extortion" grey area; but since Getty itself insists, in their own memorandum, that it was distributing "public domain" photos because it knew they were public domain, then Getty's behavior appears to be: we know we were wrong, but we'd just yell infringement to individuals or small business owners anyway, just to make them pay up 'cause it's not worth fighting, and hey, nothing will happen to us anyhow since they're public domain.
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 (https://www.hackerfactor.com/blog/index.php?/archives/627-A-Victory-for-Fair-Use.html), that is, anyone but those scared into paying up, when nothing was due.
-
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?
-
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 (http://www.extortionletterinfo.com/forum/getty-images-letter-forum/looking-for-highsmith-letter-recipients/). 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 (https://scholar.google.se/scholar_case?case=4312140506998046506):
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?
-
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
-
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
-
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 (http://www.extortionletterinfo.com/forum/getty-images-letter-forum/dmla-makes-a-statement-on-highsmith-v-getty/msg20270/#msg20270) 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 (http://www.extortionletterinfo.com/forum/getty-images-letter-forum/getty-answered-to-carol-highsmith/msg20342/#msg20342), 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.
-
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...
-
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 (http://www.gettyimages.com/eula).