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Author Topic: Photographer sues Getty for extortion letters over her work  (Read 8575 times)

Engel Nyst

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Very interesting lawsuit has just been filed:
http://bit.ly/2ae27tg

Carol Highsmith gave her photos to the public to display for free. Getty/LCS/Alamy grabbed 18,000 photos, and for years claim that they have the right to license them, and pursue alleged infringements of her photos. Many times Getty doesn't even credit her, and claims of course copyright over the work.

Note that Getty/LCS sent *her*, to the photographer, an extortion letter over her own photo. At which point it seems she looked into this madness and how Getty misleads people into paying up with no right to enforce (c), and eventually is suing Getty under 1202.

Matthew Chan

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Re: Photographer sues Getty for extortion letters over her work
« Reply #1 on: July 27, 2016, 06:05:02 PM »
Well, well, what do we have here?  What an interesting find. Thank you for bringing it to our attention.  This is a very interesting lawsuit indeed.  The description in the lawsuit is worth reading. I have cut and pasted the text from that section and highlighted the interesting parts.
======================

NATURE OF CASE

1. This is a copyright lawsuit brought by distinguished American photographer Carol M. Highsmith under the Digital Millennium Copyright Act (“DMCA”), 17 U.S.C. §§1202(a), 1202(b) and 1203, based upon the Defendants’ gross misuse of Ms. Highsmith’s photographs – more than 18,000 of them.

2. In December 2015, Ms. Highsmith received a letter addressed to her nonprofit organization from the Defendants accusing her of copyright infringement and demanding payment for displaying one of her own photographs on her own website. See attached Exhibit A.

3. Ms. Highsmith subsequently learned that the Defendants have been sending out similar threat letters to other users of her photography, and that Getty and Alamy are purporting to sell licenses for thousands of her photographs on their commercial websites.

4. Through the United States Library of Congress (“Library”), Ms. Highsmith had previously given the public the right to reproduce and display all the photographs at issue in this lawsuit, for free.

5. Beginning in about 1988 and continuing from time to time, to the present, Ms. Highsmith has been providing the Library with tens of thousands of her valuable photographs.

6. These photographs represent her extensive documentation of people and places throughout the United States of America.

7. The Defendants have apparently misappropriated Ms. Highsmith’s generous gift to the American people. The Defendants are not only unlawfully charging licensing fees to people and organizations who were already authorized to reproduce and display the donated photographs for free, but are falsely and fraudulently holding themselves out as the exclusive copyright owner (or agents thereof), and threatening individuals and companies with copyright infringement lawsuits that the Defendants could not actually lawfully pursue.

8. As described further herein below, the conduct of the Defendants runs afoul of the DMCA’s provisions proscribing the removal, modification and falsification of “copyright management information,” unlawful conduct that has injured Ms. Highsmith, thereby entitling Ms. Highsmith to the relief sought herein.

9. Furthermore, despite the fact that Ms. Highsmith objected to the Defendants’ conduct shortly after receiving the Defendants’ threatening letter, such brazen and extortionate conduct still continues to this day, as the Defendants continue to threaten users of Ms. Highsmith’s photography. Defendants continue to license these images, in exchange for money that they know they are clearly not entitled to collect.

10. Defendants’ violations of 17 U.S.C. § 1202 entitle Ms. Highsmith to recover, among other things, and if she so elects as provided in 17 U.S.C. § 1203(c)(3)(B), “an award of statutory damages for each violation of section 1202 in the sum of not less than $2,500 or more than $25,000.”

11. Getty has committed at least 18,755 separate violations of 17 U.S.C. § 1202, one count for each of the 18,755 Highsmith Photos appearing on Getty’s website. Thus, Ms. Highsmith is entitled to recover, among other things, and if she so elects, aggregate statutory damages against Getty of not less than forty-six million, eight hundred eighty-seven thousand five hundred dollars ($46,887,500) and not more than four hundred sixty-eight million, eight hundred seventy-five thousand dollars ($468,875,000).

12. The unlawful conduct complained of herein is not Getty’s first violation of the DMCA, codified at 17 U.S.C. § 1202.

13. Getty was found by this Court to have violated 17 U.S.C. § 1202 within the last 3 years, and ordered to pay over $1 million in damages.

14. Because Getty has already had a final judgment entered against it by this Court under 17 U.S.C. § 1202 in the past three years, this Court may treble the statutory damages in this case against Getty.

15. Getty must therefore account for well over one billion dollars ($1B) in statutory copyright damages in this case.

16. Unfortunately, the Defendants’ bad faith business practices have proven to be so lucrative, their behavior has apparently continued unabated.

17. Absent Order of this Court and such exemplary damages to deter such egregious conduct, Ms. Highsmith and the public at large will continue to be defrauded, misled, and irreparably injured by the Defendants’ unlawful acts.
I'm a non-lawyer but not legally ignorant either. Under the 1st Amendment, I have the right to post facts & opinions using rhetorical hyperbole, colloquialisms, metaphors, parody, snark, or epithets. Under Section 230 of CDA, I'm only responsible for posts I write, not what others write.

Robert Krausankas (BuddhaPi)

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Re: Photographer sues Getty for extortion letters over her work
« Reply #2 on: July 27, 2016, 06:13:59 PM »
THis made my day, my week, maybe the whole entire year!!
Most questions have already been addressed in the forums, get yourself educated before making decisions.

Any advice is strictly that, and anything I may state is based on my opinions, and observations.
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stinger

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Re: Photographer sues Getty for extortion letters over her work
« Reply #3 on: July 27, 2016, 06:48:36 PM »
This is really cool.  I expect that Getty will try to settle this with non-disclosures and the like.

Since Ms. Highsmith is demanding a jury trial, my hope is that she sticks to her guns and pursues this to the max.  Hopefully any settlement or judgement awarded will sound the death knell for Getty.  It is something that I, and many like me, think they deserve for their actions over the years.

At the very least, I would hope that any settlement or judgement reduces Getty to a fraction of itself, so that follow on actions by other who have been harmed by them might put an end to their business model.

I hope that Ms. Highsmith can find ELI.  There are many here, willing and able, to assist her in any way possible, in her suit.  I wonder if Matt or Oscar should reach out to her to see if there are ways the members of ELI might assist in her action.  The more she knows of how Getty has pursued and harmed others over the years, the stronger her case might be.

I would think we could even raise funds for her legal team if necessary.  Perhaps this could turn into a non-class action case that has some of the same effects on Getty as a class action case might. 

Like Robert, I find this wonderful news!

Engel Nyst

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Re: Photographer sues Getty for extortion letters over her work
« Reply #4 on: July 27, 2016, 08:19:34 PM »
At this stage I have a couple of comments:
 
1) I wish Ms.  Highsmith adds to the complaint copyright misuse.  Because this case could help establish good law on it. It is a misuse of copyright to use the copyright you have over a work to wrongfully claim copyright over public domain work or otherwise works or fields that are not under your copyright.

2) I haven't read yet the terms of the donation to the library of Congress; almost everything relies on that license. The complaint says reproduction and display were free for the public, and sues for distribution. That seems right, if the license of the collection supports this.
She also sues for infringement of the right to authorize those actions. I'm not sure this will work; if it will work, I think it's like misuse (guilt not of authorizing, but of claiming wrongfully that people are not authorized until Getty/co purportedly gives them rights.)

I don't have the exhibits attached to the complaint, either, if anyone can find them it would be awesome if you link them.

Engel Nyst

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Re: Photographer sues Getty for extortion letters over her work
« Reply #5 on: July 27, 2016, 10:24:41 PM »
Terms on the photos seem to be public domain. That's not helping Carol's suit for (c) infringement, because if the photos are indeed public domain, no one has standing. But the misuse remains.

There's also a potential 512(f) if Getty/LCS demanded anyone under DMCA to takedown Carol's photos.

Info about her photography gift:
http://www.loc.gov/loc/lcib/0712/gift.html

michmo823

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Re: Photographer sues Getty for extortion letters over her work
« Reply #6 on: July 28, 2016, 06:59:15 AM »
I cannot take it.  I am practically feeling high now.

HAHAHAHAHAHAHAHAHA.

Would unleash a whole string of expletives, but out of respect for this beautiful forum, just gonna say... I feel vindicated.  Definitely made my day.

Engel Nyst

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Re: Photographer sues Getty for extortion letters over her work
« Reply #7 on: July 28, 2016, 04:30:21 PM »
I found exhibit B, the gift to the  public, and well, as I thought, almost everything will depend on its interpretation:
https://www.documentcloud.org/documents/2999595-Gov-Uscourts-Nysd-460787-1-2.html

In the first page, Carol says she gave title to the library of Congress. and that she dedicated the collection to the public.
I have no doubt that Getty will argue that she no longer has standing, because she no longer has title.
However, the document continues by placing conditions on both the library and the public: it says that the public is entitled to make a reproduction, provided that it credits "library of Congress, Carol Highsmith Archive". That is a condition of the  permission to reproduce. There are other restrictions too (not too relevant in practice, but they show that this instrument of gift didn't relinquish all rights unconditionally: even the library has permissions for particular purposes, not anything goes).

It will not be easy, but at first sight, I think Carol might prevail. The document shows that she intended to never sue over copyright, as long as credit is given. I don't doubt, reading it, that she never contemplated the possibility of reckless misattribution, and she surely didn't intend to allow that.

But it's problematic. Getty lawyers will be all over the public dedication text, to argue she has no standing. Several possible solutions:
- bring more evidence from the time when the gift was made, that no one contemplated any chance that this text will be interpreted to mean that she lost all rights to enforce proper attribution (so interpret it as a nonexclusive license requiring credit),
- peruse any extortion letter for DMCA takedown language, and add 512(f) to causes of action;
- get some monkeys to do legal research to find other ways to express the egregious situation we have here (fraud, misleading, torts),
- join the Library of Congress as plaintiff (the instrument miight be interpreted so that the library holds title?)
- look into earlier/all cases of (c) misuse and add a cause and/or add arguments for the judge to consider them here.
« Last Edit: July 28, 2016, 04:34:07 PM by Engel Nyst »

Engel Nyst

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Re: Photographer sues Getty for extortion letters over her work
« Reply #8 on: July 29, 2016, 07:54:14 AM »
Geekwire reported the statement Getty made yesterday. Here it is:
Quote
We are reviewing the complaint. We believe it is based on a number of misconceptions, which we hope to rectify with the plaintiff as soon as possible. If that is not possible, we will defend ourselves vigorously.

The content in question has been part of the public domain for for many years. It is standard practice for image libraries to distribute and provide access to public domain content, and it is important to note that distributing and providing access to public domain content is different to asserting copyright ownership of it.

LCS works on behalf of content creators and distributors to protect them against the unauthorized use of their work. In this instance, LCS pursued an infringement on behalf of its customer, Alamy. Any enquiries regarding that matter should be directed to Alamy; however, as soon as the plaintiff contacted LCS, LCS acted swiftly to cease its pursuit with respect to the image provided by Alamy and notified Alamy it would not pursue this content.

In other words:
- Getty jumped immediately on the public domain dedication. Their contention will be that Carol lost the right to enforce her copyright
- "standard practice" - that Getty and others can distribute public domain content. This forgets that the instrument of gift doesn't actually enumerate distribution among the rights being granted, and, that Getty DID claim copyright over thousands of Images
- note that Getty doesn't admit LCS and Alamy are its alter-egos
- claims that LCS stopped pursuing Carol, but forgets it sure as hell didn't stop pursuing alleged "copyright infringement" on many other people and images.
- as noted here, Getty makes clear that it's going underground, in private, to dispute Carol's rights, try to minimize the egregious parts of this whole situation, and try to reach a settlement.
« Last Edit: July 29, 2016, 07:56:07 AM by Engel Nyst »

stinger

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Re: Photographer sues Getty for extortion letters over her work
« Reply #9 on: July 29, 2016, 08:37:38 AM »
Nothing I read grants Getty the right to extort money by claiming copyright control of Ms. Highsmith's works.

Robert Krausankas (BuddhaPi)

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Re: Photographer sues Getty for extortion letters over her work
« Reply #10 on: July 29, 2016, 08:50:50 AM »
What I'm getting from Getty's statement is that Carol is suing the wrong company, that she should be pursuing ALAMY. I have not looked into the alamy connection and whether or not getty owns them, they certainly own LCS and picscout...another issue Getty did not address was the fact that over 18k images appeared in the getty library and on their website. Give their past loss, and when this whole extortion thing comes to light in a court-room, I think Getty will have a rough time of it...at least I hope they do!
Most questions have already been addressed in the forums, get yourself educated before making decisions.

Any advice is strictly that, and anything I may state is based on my opinions, and observations.
Robert Krausankas

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Engel Nyst

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Re: Photographer sues Getty for extortion letters over her work
« Reply #11 on: July 29, 2016, 10:18:25 AM »
What I'm getting from Getty's statement is that Carol is suing the wrong company, that she should be pursuing ALAMY. I have not looked into the alamy connection and whether or not getty owns them, they certainly own LCS and picscout...another issue Getty did not address was the fact that over 18k images appeared in the getty library and on their website. Give their past loss, and when this whole extortion thing comes to light in a court-room, I think Getty will have a rough time of it...at least I hope they do!

If Getty owns LCS, then I believe it's correct to sue Getty.

Then, as you said, Getty distributed the images under their own name anyway and claim they own them.

Robert Krausankas (BuddhaPi)

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Re: Photographer sues Getty for extortion letters over her work
« Reply #12 on: July 29, 2016, 03:16:11 PM »
exactly, but they are trying to pass the buck as it were, saying alamy was their ( LCS) customer. I think she's on pretty solid ground, and Getty wioll offer to settle if they haven't already.. If they do settle chances are good we'll never see the amount or terms, which would be unfortunate..
Most questions have already been addressed in the forums, get yourself educated before making decisions.

Any advice is strictly that, and anything I may state is based on my opinions, and observations.
Robert Krausankas

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Jerry Witt (mcfilms)

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Re: Photographer sues Getty for extortion letters over her work
« Reply #13 on: July 30, 2016, 12:10:02 AM »
exactly, but they are trying to pass the buck as it were, saying alamy was their ( LCS) customer. I think she's on pretty solid ground, and Getty wioll offer to settle if they haven't already.. If they do settle chances are good we'll never see the amount or terms, which would be unfortunate..

^^^^ THIS  ^^^^

What Robert said is exactly what I predict will happen. I wonder if it would be worth it to track down Ms Highsmith, brief her on what Getty has been doing and ask her if she would be willing to make NOT signing a non-disclosure agreement part of any settlement offer. After all, it so often happens that Getty settles and we never hear any more about it. It would be great for people that get ripped off by Getty to know that they can fight and win.
Although I may be a super-genius, I am not a lawyer. So take my scribblings for what they are worth and get a real lawyer for real legal advice. But if you want media and design advice, please visit Motion City at http://motioncity.com.

Robert Krausankas (BuddhaPi)

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Re: Photographer sues Getty for extortion letters over her work
« Reply #14 on: July 30, 2016, 08:36:35 AM »
I've already gt my foot in the door, I've contacted her and she kindly replied, I think Oscar may be contact with her attorneys..
Most questions have already been addressed in the forums, get yourself educated before making decisions.

Any advice is strictly that, and anything I may state is based on my opinions, and observations.
Robert Krausankas

I have a few friends around here..

 

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