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.htmlIn 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.