Acclaimed photographer Carol Highsmith has filed a Federal lawsuit alleging violations of the Digital Millennium Copyright Act against Getty Images and other parties for their attempt to charge her and others for the use of her own photos. Ms. Highsmith has been praised by the Library of Congress for her donation of thousands and thousands of her images of the American landscape to the Library of Congress. The Carol M. Highsmith Archive, which is expected ultimately to include over 100,000 high-quality, professional-grade images, is accessible royalty-free via the library’s website. The Library said of her donation that her act was “one of the greatest acts of generosity in the history of the Library.”
Her reward? A demand letter from Getty Images over her own use of one of her pictures. She received a similar letter from British photo library Alamy, which used Getty subsidiaries PicScout and License Compliance Services (LCS), to scour the Internet to find photos that they allegedly owned used by folks who did not pay a license fee. So Ms. Highsmith is suing Getty Images, Alamy, PicScout and LCS for $1 Billion as she has found over 18,000 of her images in Getty and Alamy’s photo libraries without any accreditation. She is seeking statutory damages as well as punitive damages.
It a huge blow to Getty, which in 2013 lost over $1 Million in damages to Haitian photographer Daniel Morel for using his incredible pictures from the Haitian earthquake without his permission. Ms. Highsmith references Mr. Morel’s claim in her complaint as proof that Getty should know better and is careless about their use of images. Getty will find it hard to explain how it has all these Highsmith images on its site without accreditation and without paying Ms. Highsmith when they license the images to others. The discovery of how Getty tracks, obtains and catalogs its images could be extremely revealing and damaging to the company. Believe me when I tell you that I will be watching this lawsuti very closely as it progresses.
For me, this lawsuit was Christmas, Easter and the Fourth of July all wrapped up in one pretty little package. Getty began this letter demand program in 2006 or so and has sent out hundreds and thousands of letters each week to alleged copyright infringers who are accused of using a Getty image on their website. Since 2008, I have been the legal adviser and commentator on a website called
Here’s how the Getty letter demand program works. Getty uses PicScout, a software developed in Israel by two engineers, to scan and scour millions of websites for images that are contained in its catalog. When PicScout finds a match it reports the find to Getty which now uses its subsidiary License Compliance Service to issue a threatening letter. The letters used to demand over $1000 to $1500 per image when the program started. But in large part due to Matt Chan’s, ELI’s and my efforts hey demands are around $500. But the reason why we all call it “legalized extortion” is that Getty refuses to show proof of ownership of the images or proof that the photographer has authorized Getty to pursue damages or proof that Getty ever licensed the images for any amount of money close to the demanded amount. But the reason why Getty’s trolling program works is that few folks are willing to fight a billion dollar company over a $500 claim. Getty has tried many times to thwart ELI and my efforts. In fact, even now, cases of Getty letter recipients who hire me are not handled like anyone else’s – instead they are referred to a Seattle law firm Yarmuth and Wilsdon who threatens to file suit over a single digital image if the client doesn’t pay the demanded amount. They never do that to NY letter recipients though since they know I would represent them for free in such a case so even if these targets want to use my services they will need to hire a local lawyer to defend the a case in the local Federal court. Since that will invariably cost more than the demanded amount, Getty gets their pound of flesh without ever having to prove the validity of their claim. Let me give you an analogy: Say you’re driving and by mistake you tap into the bumper of the car in front of you who was stopped at a red light. Although you see only a minor scratch on the other vehicle, you exchange information. A year later, you get a letter from the other car’s driver asking for $500 to repair the scratch. You ask him to send you a repair bill or other proof that the car repair cost that much. He refuses. Now he sues you in court. You were in the wrong but you feel he will have a hard time proving his case so you’r ready to fight him in small claims court. But copyright cases don;t go to small claims, no matter the value. They go to Federal Court. And if your website is owned by a company or a corporation (as most business websites are) you MUST get a lawyer as a corporation cannot represent itself in court. Now what? Do you spend $2,500-$5,000 as an initial retainer to fight a $500 claim? No you pay up and go home.
But Getty mis-stepped here. Its program is so massive that it doesn’t check into who they are sending letters out to; there are no checks and balances. If PicScout says you stole a Getty image, you get a letter. And believe me it usually works. After all, back about two years ago Getty bought PicScout for over $20 Million and it now licenses PicScout and LCS to its own competitors for their use. So Getty’s competitors are paying Getty for their own infringement program. Here Getty demanded only $120 from Ms Highsmith. I am sure they never expected that their $120 demand letter would land them in a billion dollar lawsuit. It took me five full minutes to stop laughing when I read Ms. Highsmith complaint, which you can find HERE. It couldn’t happen to nicer guys.
The Getty lawsuit also reveals the dangers of trolling. Many industries are using similar tactics to target bars that play live music; or folks who may have downloaded porn; or people who share celebrity images. People don’t know their rights, don’t have access to lawyers and are faced with the choice of settling for an amount they can afford or fight the case for ten times or more than that amount. Most of them decide to settle without ever knowing if they were guilty of what they were accused of or even if the attacker can prove the claim. Hopefully this lawsuit will alert Federal courts to the sketchiness of some of these trolling-type claims and send a message to copyright trolls that they better be more careful about their practices.