She owns the rights to the images. She licensed the Library of Congress to distribute them for free, but did not release them into the public domain.
Getty is selling her images. That's a for-profit DMCA violation. The statutory penalty applies, which is from $750 per image to $30,000 per image. She makes a case that the higher end of the scale should apply, because some of her images are quite famous. Two have appeared on US stamps, for example.
Getty recently lost a DMCA case for doing something similar. That makes this a second offense and triggers the triple damages provision in the DMCA. So, as a matter of law, she is entitled to at least 18,755 * $750 * 3, or about $42 million. That's a minimum.
According to exhibit B [1] - The instrument of gift - she did not intend to relinquish her rights as there are specific conditions for reproduction of the works contained in the Carol M. Highsmith Archive.
Also explicit permission is given to the library to make copies of the work for security,preservation etc.
You say that but that's not the reading I make of this contract. "I hereby dedicate to the public all rights, including copyrights,... that i posses in this collection".
that seems pretty clear cut to me. Conditions for reproduction only seem to express the general ways the content should be available for users of the library. Nothing limiting availability, in fact it's promoting methods of being available.
So that leaves the question of a: whether or not getty et al were able to sell works in the public domain. My quick read of it seems that if they can come up with some kind of argument that they are selling derivative work (including perhaps some kind of unique identification layer, or meta data perhaps ... ?), OR that they are selling a reproduction. tenuous, but that may be their justification.
as for requesting a license fee, well that's on LCS and Alamy (who I don't think have had an issue in the past 3 years of this stuff, so the multiplier doesn't apply here)
NB: Alamy being a uk company, so they can hide behind a corporate shield if their assets are mostly offshore...
this is the settle page, from the first exhibit: https://settle.lcs.global/103173853953 -- that's what she got sent. It doesn't appear that they argue they are the exclusive license holder, and especially if they argue they are holding a license to derivative work -- well. that's a whole ball of wax.
Thinking further, since she no longer holds the copyright to these images, and the United States is not listed as a co-plaintiff, I'm not even sure she has standing to bring this case at all -- but, on that, IANAL. :P
I am not a lawyer either but I think even if you adhere to the declaratory theory of law and take this waiver literally word for word
I hereby dedicate to the public all rights, including
copyrights throughout the world, that I possess in this
collection.
I have the feeling the lawyer who drafted this instrument of gift was a very competent one as in USA law the copyright of a collection or compilation does not affect the copyright of the works included in it.
17 U.S.C. § 103(b)
The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.
Yeah. you're absolutely right, that clause will be the point of argument. This is where my lack of legal education fails me though, since it is not clear what it means when saying _material contributed by the author_ and what _preexisting material_ means.
Interesting to see that Alamy are involved with this. I have firsthand experience dealing with them first as a photo contributor and later as a copyright holder finding Alamy to be in breach of both UK copyright law and also their own contributor agreement.
Alamy claim they delete all copies of contributor photos from their servers 45 days after you terminate your contract but failed to do this, and continued serving my images for many months after our agreement ended. When I contacted them they first claimed it was Google's fault (cached images) and them later admitted they had done it but were still defiant and claimed they could do it because finding my images was 'difficult'.
They are a large photo agency and their infrastructure is first-class, so I had some interesting email and telephone exchanges with Level 3 and AWS when I sent them DMCA takedown notices and explained that there was no 'safe harbor' for them and I had absolute proof (the Exif metadata with my name and copyright notice was still preserved in the images and I provided direct alamy.com/... links to them hosted by Alamy).
Blog post here, if you want the whole story including replies from Alamy. They seem like one of the better photo agencies but damn, they really don't like being held to the same standards they hold the public to. https://www.tombrossman.com/blog/2014/alamy-copyright-and-ex...
> My quick read of it seems that if they can come up with some kind of argument that they are selling derivative work (including perhaps some kind of unique identification layer, or meta data perhaps ... ?), OR that they are selling a reproduction. tenuous, but that may be their justification.
Wouldn't this make all electronically transmitted media into "derivative works", though? This sounds like such a reading would make the concept meaningless (and also possibly contradict the outcome of other infringement/attribution cases)
as broad as that yes, but if you enhance the work during transmission (e.g. by including meta data about the work) you may be able to argue derivation. i think it's an area where clearly technology and the ability to reproduce like-for-like fails the reading of law as it stands today.
This still seems shaky to me: wouldn't then, e.g. the Google image search pipeline perform an enormous number of copyright violations every day? They download images from a huge number of different rights holders, store them on google servers, recode them to produce thumbnails and distribute the recoded images via the image search UI. By your logic, they'd have to ask every single rights builder for permission to create derived works before they can include their images in image search.
Additionally, every time I download something from the web and store it on my hard drive, my OS will enrich it with metadata: file name and path, timestamps, local user, permissions, etc. So unless a site author grants all visitors the permission to create derived works, I'd be infringing just by visiting their web site.
Finally, if you assume that only some metadata counts as creating a derived work, Getty would have to prove that all users they threatened did in fact use Getty's "enhanced" version of the image and not the original. I find it very unlikely that the photographer herself would have used Getty's version and not herselfes, so I don't think they did that.
It's not possible to renounce copyrights in the US; they're inalienable rights. The only way to get something in the public domain is for the copyright term to pass... and even then there are problems (see the Sherlock Holmes saga).
My bad. In the first place, what I meant is that you can't give up copyright - you can't say "this work is in the public domain". (Or rather, you can, but there's nothing legally preventing you from saying a year later "I changed my mind".) See http://www.rosenlaw.com/lj16.htm
However, "inalienable" was incorrect - you can most definitely sell your copyright.
just to clarify because i think you sort of said you were wrong but i'm not entirely sure...
if i read 17 U.S. Code § 201 (d) clearly, it suggests you can transfer ownership of copyright in any normal legal way of executing a contract.
I think your confusion is around the idea of works falling into the public domain via expiry of copyright, and/or works that do not have an explicit declaration of rights ownership.
In this case it seems she was pretty clear about her transfer of ownership. I don't believe you can rescind that just as you prefer, at any time.
Yeah, the Library of Congress isn't exactly a licensing body. Well I guess they technically are "the" licensing body, just not in the business of earning money doing it.
The DMCA isn't the most important part here, the (classical) infringement itself is the big factor, because the images are under the photographer's exclusive copyright. Adding the DMCA claim of falsifying copyright information certainly helps her case though.
Having said that, if it turns out that the library of congress is responsible for the infringements (because they published the images and labelled them incorrectly as being public domain) then Getty would be off the hook for infringement but the DMCA claim of falsifying the copyright information would still apply (as you can't claim exclusive copyright over a public domain work).
I suppose it's possible that an unscrupulous third party falsely licensed the "public domain" images to Getty, which would make Getty responsible for neither the falsification of copyright information, nor the infringement. I guess in that case Getty would still be found to have been infringing, but not deliberately.
> Having said that, if it turns out that the library of congress is responsible for the infringements (because they published the images and labelled them incorrectly as being public domain) then Getty would be off the hook for infringement
It seems to me that mislabeling wouldn't make the LoC legally responsible for the infringement, but might make Getty not liable for any infringement that happened entirely before they were made aware of the incorrect labeling. Or maybe not; since willfulness is an enhancement on liability for infringement liability [0], not a prerequisite, the fact that Getty did not know that the images were subject to copyright may not be a defense.
> I suppose it's possible that an unscrupulous third party falsely licensed the "public domain" images to Getty, which would make Getty responsible for neither the falsification of copyright information, nor the infringement.
AFAICT, that wouldn't necessarily legally relieve Getty of liability, though it would make the other party liable to the copyright owner for willful infringement, fraudulent claims of ownership, and contributory infringement (with regard to Getty's infringement), and also liable to Getty for fraud and potentially other torts.
I wonder if they filed any DMCA claims over those images, though? The clause you attest to under penalty of perjury is that you represent the copyright holder of the works claimed to be infringed.
So if they sent her a DMCA of her own images, as one might assume based on what was said, then it could be interesting if that gets brought up in court.
Yes I definitely agree with this assessment. There's more than a few scenarios in which Getty unintentionally infringed but is still liable and will look to sue the third party which misled them.
She owns the rights to the images. She licensed the Library of Congress to distribute them for free, but did not release them into the public domain.
Getty is selling her images. That's a for-profit DMCA violation. The statutory penalty applies, which is from $750 per image to $30,000 per image. She makes a case that the higher end of the scale should apply, because some of her images are quite famous. Two have appeared on US stamps, for example.
Getty recently lost a DMCA case for doing something similar. That makes this a second offense and triggers the triple damages provision in the DMCA. So, as a matter of law, she is entitled to at least 18,755 * $750 * 3, or about $42 million. That's a minimum.