Photographer sues Getty Images, alleging it is wrongly selling licenses to her public-domain photos
A photo by Carol Highsmith noted in her lawsuit against Getty Images.
Photographer Carol Highsmith started donating copyrights to her photos to the Library of Congress in 1988. So when she got a letter demanding $120 for the use of one of her own photos, she knew something was wrong.
According to the lawsuit Highsmith filed this week in Manhattan federal court, Getty Images and three other photo-licensing services have “apparently misappropriated Ms. Highsmith’s generous gift to the American people,” by charging licensing fees to people and organizations authorized to use the photos at no charge. Her lawsuit alleges that Getty Images alone has violated one section of the Digital Millennium Copyright Act 18,755 times, based on the number of photos it is offering to license on its website.
An exhibit to the lawsuit, dated 1991, says Highsmith permits the general public to reproduce the photos freely, as long as credit is given to the library’s Carol M. Highsmith Collection. That information is available on the Library of Congress website. The lawsuit says Getty has no contract with Highsmith and no rights aside from the rights granted to all Americans by her gifts. Some of the online listings for the photos credit an entity called Buyenlarge as copyright owner; others credit Buyenlarge as well as Highsmith and “Contributor.”
According to Ars Technica, Highsmith’s nonprofit This is Amerca! Foundation received a letter from License Compliance Services Inc. demanding $120 in payment for its use of one of Highsmith’s own photos. Highsmith spoke to LCS to explain that she was not only the photographer but had donated the photos to the public. LCS closed the matter shortly afterward, but licenses for the photo remained for sale.
Getty Images has a reputation for aggressive copyright enforcement; it has also pursued license fees from, among other things, users of a popular penguin meme that relies on an altered version of a photo in Getty’s archives, the Washington Post reported last year. According to the lawsuit, Getty lost another DMCA lawsuit in Manhattan federal court in 2014—Agence France Press v. Morel v. Getty Images—enabling Highsmith to request treble statutory damages. If granted, this could put Getty’s total liability well over $1 billion.
A statement posted on Getty’s website says it’s “standard practice for image libraries to distribute and provide access to public domain content,” and that this is different from asserting ownership. It made no comment on the assertion of licensing rights made by LCS, but said LCS contacted Highsmith on behalf of UK photo library Alamy and that all questions about that matter should go to Alamy.
The lawsuit also alleges that defendants LCS and Picscout—copyright enforcement companies rather than photo libraries—are owned by or under common control with Getty. Sarah Lochting, Getty vice president for communications, told Ars Technica that LCS and Getty are “separate entities and have no operational relationship”; she said the lawsuit was the first notice Getty had of the problem. But the lawsuit notes that LCS’s domain name is registered to the physical address of Getty’s Seattle headquarters, and the two companies have executives in common. This means LCS’s knowledge of the problem should be imputed to the other companies, the lawsuit says.
Ars Technica says the Highsmith images had disappeared from Getty’s website by Wednesday, though they remained on the website of defendant Alamy, a British company.
Highsmith is a professional photographer whose work has been featured in more than 50 books and two U.S. Postal Service stamps. The lawsuit notes that her donated work has also been used several times as set dressing in major movies and television shows. According to Ars Technica, she was inspired to donate her copyrights by a similar gift from a 1930s photographer she admires, Frances Benjamin Johnson.
Updated July 29 to include a statement from Getty Images.
