Share, But Retain Your Rights: ‘Highsmith v. Getty’

Copyright, General Interest

By: Ken Sawdon

I never predicted my first professional post-graduate degree job would have been in the stock footage and photo industry. Librarianship is a broad profession with many facets, and I get to use the knowledge I gained from my library degree in this position while also learning other related and useful skills. There are four of us MLIS-holders in the company I work for. We handle collections management, customer service, search optimization, intellectual property consultation and other LIS-related tasks. But I always feel at arms-length from the profession for which I have a deep respect and passion. I get pretty excited whenever news in the stock industry intersects with matters important to librarianship.

Getty Images went to court with an American photographer over images. Photo credit: SketchPort/Kassy
Getty Images went to court with an American photographer over images in the public domain. Photo credit: SketchPort/Kassy

“Highsmith v. Getty Images” is a great example of the incredible importance in selecting the correct copyright license to your works, or when you recommend a license to another person. While it’s commendable to make your works open to everyone, the actual legalese behind the wording is important. In “Highsmith v. Getty Images,” the selection of a public domain designation over a Creative Commons license had some unexpected results.

Getty Images, one of the world’s largest stock providers with an impressive collection of content and lawyers, has found themselves in court a number of times over the years. Not an incredible amount of times though, as they are a huge worldwide supplier of copyrighted material and some legal battles are expected. Some of the most recent and high profile cases against Getty include a 2009 case with Car-Freshener Corp. for licensing images of their iconic pine-tree shaped aromatic products. Another important case occurred in 2013, when Getty Images used a freelance journalist’s Twitter photos from the 2010 Haiti earthquake. Of course, Getty Images have many legal cases going the other way, where they act as a plaintiff for its contributors.

Nelson Atkins Art Museum in Kansas City
Getty Images contacted Highsmith about her public domain photo of the Nelson Atkins Art Museum in Kansas City. Photo credit: Library of Congress

At the end of July, Getty Images found themselves embroiled in a new and fairly high-profile case from Carol Highsmith. Highsmith is a beloved American photographer following in the steps of Frances Benjamin Johnston  and Dorothea Lange by recording moments of modern American history and donating these images to the public domain. Highsmith donates all her photos directly to the Library of Congress, a collection that includes around 100,000 photographs dating from 1980 to the present. Library of Congress staff have praised her work highly, calling her donations “one of the greatest acts of generosity in the history of the library.” She truly has an eye for photography; every shot in her collection is skillfully planned and shot. Her primary subject is architecture, but she also has plenty of portrait photos, lifestyle and cultural event images, as well as landscape and cityscape shots.

Highsmith’s lawsuit against Getty Images started when one of Getty’s associated firms sent a threatening letter to her non-profit organization, This is America Foundation! The firm demanded $120 for using a photo in their collection without a license. Of course, the photo had been taken by Highsmith herself and was in the public domain (whoops!). Unknown to Highsmith, Getty and their affiliated firms had been adding her work to their collections and selling licenses to use her work. The Getty web-crawling robots then found Highsmith’s photos on her own site, informed the legal department, and sent a standard threat-letter. The robots weren’t told these images belonged to the public domain and their legal department didn’t do enough checking to realize the mistake. I would say that Getty failed to do their due diligence and merely assumed they had legal rights to demand money from people. It is well documented that Getty, similar to other copyright owners, has controversial methods of copyright enforcement.

Collecting and licensing materials found in the public domain is actually very normal in the stock industry. I have cataloged footage that is nothing more than cut up versions of the same footage that can be found and used for free from the Internet Archive or YouTube. Licensing public domain footage and photos sounded “wrong” to me and others when we first heard about it, but it’s perfectly legal and has been common in, for example, the book publishing industry for a long time. I own the Barnes & Noble, Inc. 2010 edition of “Alice’s Adventures in Wonderland and Other Stories,” for which I paid around $25. Lewis Carroll (or Dodgson if you prefer) died in 1898, and his works are well within the public domain; all of his stories can be found at Project Gutenberg. I not only paid for the stories and original illustrations, but also the physical product — the material resources, nice design, gilded page edges — the original art, the introduction, added chronology and the convenience of not needing electronics to enjoy it. Similarly, people pay for other things than just copyright licensing for the content of stock providers’ collections.

Here is an excerpt from a Los Angeles Times column from Michael Hiltzik:

Copyright experts say there’s no legal obstacle to charging money for [public domain] material, as long as the fee isn’t charged as a copyright claim.

“If this stuff really is in the public domain,” says Carl Malamud, a prominent warrior against copyright claims by government agencies, “you can use it any way you want, and that means for commercial purposes.” In other words, nothing stops Getty Images from acquiring the New Deal images from the Library of Congress on its own and charging others to download them from its own website. “To charge you is immoral, but not illegal,” Malamud says.

So what is Getty selling when it charges a client for the use of a publicly owned photograph? In an emailed statement, the firm says it’s selling such services as “image search tools and research support” to assist clients in “locating the right image for their needs.” Getty also provides specialized delivery methods for certain clients, including direct feeds into software apps.

Perhaps most important, Getty provides legal indemnification for the use of images taken from its inventory — in other words, if a client faces a lawsuit for infringing an unsuspected license or copyright, Getty will cover the cost.

Getty certainly does have additional added value in the form of their website design, search engine and tools, research support, distribution methods and indemnification services. So, similar to repackaging “Alice’s Adventures in Wonderland,” I believe there is a long and unquestioned history of selling things that are free elsewhere. It is very scummy, but it is legal.

Photo credit: Wikimedia Commons/Library of Congress
Highsmith’s self-portrait during a hotel restoration in Washington D.C. is one of the photos in the Library of Congress’ collection. Photo credit: Wikimedia Commons/Library of Congress

In my copy of “Alice’s Adventures in Wonderland and Other Stories,” I see there is a standard form copyright message:

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronically, mechanical, photocopying, recording, or otherwise, without prior written permission from the publisher.

Well, this is obviously wrong. While there is some original art and an introduction from 1994 by Leonard S. Marcus, Carroll’s stories are in the public domain and in no way controlled by Barnes & Noble. Even if it wasn’t in the public domain, Fair Use allows for limited copying, but that’s beside the point. Barnes & Noble knows it would be wrong and wasteful to attempt to uphold any copyright claim over this public domain work. This is one of the places where Getty went wrong: they have absolutely no claim over Highsmith’s art — even if the works had been licensed through it’s service — or any other public domain works in their collection.

In no way, shape, or form would I suggest that giving out your works to the public is a bad thing. All of my own professional works are under Creative Commons licenses, whether here on the OIF Blog or in my graduate university’s institutional repository. I have no intentions to change this practice. Photographers can be incredibly successful by releasing most of their works into the public sphere. Highsmith, herself, has been incredibly successful while releasing most of her works into the public domain. But choosing the right license is important. Most people, I suspect, that want to open their works to the public still want to retain some sort of control over how and when their work is used. Highsmith selflessly gave her works into the public domain, and for that she may suffer some injustices.

There are other nuances of “Highsmith v. Getty Images” that have yet to unfold. Highsmith is, for example, worried about how the sale of her works for profit would harm her public image, as well as whether the works were or should be properly attributed to her and the Library of Congress. But for now, Getty has removed Highsmith’s works from their collections and are dealing with the negative press from the case.

Ken Sawdon is a Footage Curation and Metadata Specialist at Dissolve Ltd., a startup stock footage and photo company. He is a recent MLIS graduate from the University of Alberta, where his activities included co-chair of the Forum for Information Professionals student conference and community activist and blogger for the Future Librarians for Intellectual Freedom. He has been a volunteer librarian for the Aero Space Museum of Calgary as well as a Collections Assistant at Fort Calgary. He loves wading through policy and legislation, especially intellectual property issues and professional association rhetoric. You can find and connect with him at @kainous on Twitter.


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