Rapacious Getty

I have to admit I've been rendered speechless by a lot of things lately. I won't mention specifics in most cases—you can probably guess a few.

Not the most appalling, but possibly the most egregious, is something that's happened in our very own little parish. You can read the article yourself at Hyperallergic and I recommend you do so, but you can get the gist from the first paragraph:

"In December, documentary photographer Carol Highsmith received a letter from Getty Images accusing her of copyright infringement for featuring one of her own photographs on her own website. It demanded payment of $120. This was how Highsmith came to learn that stock photo agencies Getty and Alamy had been sending similar threat letters and charging fees to users of her images, which she had donated to the Library of Congress [for] use by the general public at no charge."

If that's not just a jaw-dropped, wide-eyed WTF, I don't know what is.

Not only that, it's not the first time it's happened. "In 2013, Daniel Morel was awarded $1.2 million in a suit against Getty, after the agency pulled his photos from Twitter and distributed them without permission to several major publications."

Behavior like that brings to mind—well, my mind—Matt Taibbi's famous description of Goldman Sachs: "...a great vampire squid wrapped around the face of humanity, relentlessly jamming its blood funnel into anything that smells like money."

By the way, in paragraph two above is our vocabulary word for the day: egregious (roughly, ih-GREE-juss), adj., extraordinary in some bad way; glaring; flagrant. Excessively shocking or outrageous. "Over-the-top awful" in argot ordinaire.

But really, there are no words.

Mike
(Thanks to Donal Wells)

Original contents copyright 2016 by Michael C. Johnston and/or the bylined author. All Rights Reserved. Links in this post may be to our affiliates; sales through affiliate links may benefit this site.

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(To see all the comments, click on the "Comments" link below.)
Featured Comments from:

Don: "Just to add some balance. The images are available from the Library of Congress website and are listed as being in the public domain for 'copyright free access.' Copyright free images do get placed at Getty by individual photographers or by archival collections that distribute them. Value is added by keywording and making them readily available. Sometimes work is done to the images to improve them, or for example copyright free images from NASA may be composited into other work. Getty provide a lot of info from their legal team to their contributors about what is considered acceptable in this way. On the customer side, many have subscription deals and find all their needs at one place, simplifying their image searches (and thus adding value). It may seem wrong, but it's not necessarily illegal. The fault could indeed lie with the Library of Congress in the way they have made the images available (i.e., not in line with Highsmith's expectations).

"As to greed? The bill sent to Highsmith is almost certainly the result of an automated bot at work. In this case a mistake was made. Hardly a billion dollar one though is it? Getty Images does this to protect the work of photographers from the hoards who think everything on the Web is free and right click anything without a thought, claiming ignorance when caught and outraged that they are expected to pay for the use they have made.

"When Getty successfully claw back payment in this way the photographer whose image has been stolen gets a cut.

"I don't know Carol Highsmith's background, but it seems she is now in a position to pursue her photography without needing payment. I would imagine most of the photographers who supply their work to Getty Images, some 250,000, like to get paid and want unlicensed uses found and billed.

"There are two sides to every story, and it's interesting to contrast this trial-by-Internet with the recent mention of payment for use to Harlan Ellison. And before anyone says Highsmith needs paying: no she doesn't, she chose to give them all away."

Geoffrey Heard replies to Don: "Sitting in my far distant spot in paradise, the South Pacific New Guinea islands, I am always amused that the moment some corporate greed is brought to light in the USA, someone pops up to defend it.

"Don says inter alia: 'I would imagine most of the photographers who supply their work to Getty Images, some 250,000, like to get paid and want unlicensed uses found and billed.' The point, Don, is that Highsmith did not supply her work to Getty Images—she gave it to the Library of Congress to be freely available to whoever wants to use it. But Getty has some sort of arrangement with the LoC so that it lists them.

"Then Don says Getty needs to get some money for the listing and what not. Really? And the listing costs $120? And are Highsmith's pictures available only through the Getty listing?

"I have used a number of pix from the LoC from time to time, just downloading them from the LoC site (I just tried to verify continuing availability today but the LoC sites are all down for maintenance over the weekend). But Highsmith would not have downloaded the pic she used from the LoC because she had it on her computer. So she just picked it up and posted it. And, of course, Don offers the excuse that no doubt the billing was generated by some automatic bot. Sure, of course it was, it is always the computer's fault when someone like the egregious Getty is caught out.

"But in this case it was billing Highsmith for $120 for her own photograph which did not come from Getty's collection or via Getty.

"Was this a standard price the Getty charges for every picture in similar circumstances? Bet it is. It is a price that is supposed to include its expenses, its profit, and a few stray cents for the photographer.

"And there is the egregiousness of the egregious Getty. It was about to keep the whole $120 because Highsmith is not a subscriber.

"Further, the bot was wrong because Getty made it that way. If automated billing is the happen, then it is incumbent upon Getty to bill only for photographs obtained from its site and maybe only for photographs supplied for sale by its subscribers.

"Its bot should not be billing for other photographs.

"It would be pretty simple, I imagine. Getty could add a bit of hidden text or whatever to every subscriber image, I imagine, through an automated process that would cost virtually half of nothing to implement, and it could then set up its billing bot to find that information and bill on that.

"But would Getty do that? Well, it wouldn't want to; it might reduce its income by a couple of bucks so it would need to be forced to.

"No bot billing without exclusive property ID!

"I like the suggestion of fining corporations a percentage of turnover (not profit, that's too easy to manipulate, just ask the taxman) rather than a flat sum. I have read that in Finland, they do something like that with parking (and other traffic?) fines. The fine is a percentage of the value of the car! Does the Grosser Mercedes driver leave his car in No Parking areas in Finland? Nope. Does he in Australia where there is a standard parking fine of $50 or $100? You bet. The standard fine is barely pocket change for him and he is happy to pay it for the convenience. If fines are to be effective across the board, they need to be in proportion to wealth."

Comments

[Mike Shimwell]

I have come to the conclusion that businesses that behave in this manner (and I would include vw and other similar environmental poisoners in this class) should be closed with a total loss to their shareholders.

The constant battle fought to protect 'caputal' is unseemly, only protects those who go after the money and creates all sorts of ongoing damage and costs for other people.

Mike

[toto]

I wouldn't say there are no words. There is one word - greed.

[Dave Van de Mark]

I must be so easy now for someone to extend their "cyber tentacles" out into another's life without them ever being aware or at least not before much damage has been done.

It does remind me of an earlier time when a cafe located in a remote area of Northern California had "stolen" an aerial photograph of mine of the Trinity Alps and placed it on the menu cover. Actually I was "delighted" and wanted to see it and only perhaps chastise them for no credit line. So off I went to have breakfast there, only to arrive at the smoldering ruins of a fire. In those neck of the woods, things like that happened when you didn't pay your drug bills :-)

[Frank P]

From my website:

"The majority of my images are released and available for licensing for slightly more than what Getty Images will charge. I am fair, I will not lowball and hurt my fellow photographers. Getty Images can rot in Hell."

[JF]

It used to be that immoral actions by corporations were over the line. Now it seems that even illegal actions are okay as long as you don't get caught. And if the company gets caught, who cares. Pay the fine and move on. You can pass it on to the consumer or take a tax deduction or even both. It's not like anyone's going to jail. In the words of Jamie Diamond, "So hit me with a fine. We can afford it."

[David Cope]

Shameful. I hope Carol gets every dollar awarded. Maybe she might consider setting up a stock agency, one that is...you know, ethical!

[Wayne]

I know of at least one case, and I understand it is becoming a trend, where a rather talented young engineer had decided to give up his job in the engineering field and go back to school, for the purpose of obtaining a law degree, in order to make the "big money" associated with patent litigation. Who am I to judge? You know what they say.....Follow the money.

[PaddyC]

I hope it goes to trial so that it can bring more shame to Getty and Alamy and hope she wins every last penny of it. Just sickening.

[Michel]

re: Matt Taibbi's description of Goldman Sachs, I think the comparison is unfair. Squid are wonderful animals, and an important contributor to the cycle of life on earth. Even vampires should take offense; they are largely misunderstood.

[vincent bilotta]

in 2012 Getty was purchased by The Carlyle Group for $3.3B

[Darlene]

“The injury to Ms. Highsmith’s reputation has been … severe, ... Therefore, anyone who sees the Highsmith Photos and knows or learns of her gift to the Library could easily believe her to be a hypocrite.”

Man oh man this really makes my blood boil. How can corporations get away with this egregious behavior, not once, but repeatedly?

Ms. Highsmith is a living example of what IS RIGHT with humanity. How dare them destroy it!

[Gavin Mclelland]

This is a problem around the world. Here in the UK the Daily Mail group is notorious for using photos and videos without permission. The link below is a blog post describing how one videographer managed to increase their payment for unauthorized use from £50 to £1000.

http://www.croydoncyclist.co.uk/video-copyright-and-the-daily-mail-from-50-to-1000/

Whilst the exact approach won't necessarily work in all jurisdictions the polite but firm tone and refusal to give in yielded results

Gavin

[Bruce Mc]

People who have seen the movie, "Talladega Nights, the Legend of Ricky Bobby," have a good idea what egregious means:

https://www.youtube.com/watch?v=vlYbpDylmUs

[Gordon Cahill]

I think the authorities need to deal with these things in a different way. They award a damages amount but in reality that's just written off as a cost of business. It's a part of the "ask for forgiveness, not permission" attitude entrenched in western society. *If* this is entrenched behaviour then I would guess that they're making a lot more money than they're paying in fines because they won't always get caught.

So what is happening because the fines and awards are amounts, smaller businesses get wiped out if they make a single error while large ones jut go on as if nothing had happened. A large business could actually make a business plan around stealing images and paying the fines.

Things might be different if we started making fines in percentages rather than amounts. 1 or 10 million is nothing to something like Getty. But a fine of 10% of your gross sales for the year is another thing entirely. That's when it becomes a real incentive to change your behaviour. It's also the same level of punishment for any business or individual and the same incentive to change that behaviour.

Plus a banner on the front page of your website outlining what you've been fined for.

Gordon

[Matthew L]

From a legal point of view—and I'm not a lawyer—this is interesting. I don't know how public domain works with images specifically, but with respect to, say, software, when you place software in the public domain you give up all rights to it. By doing so, other people may use it as they see fit. You may not require anything of them, and they may use it in (or even as) a commercial product that they charge others for. They do not have to acknowledge you in any way.

Is what Getty is doing analogous to this? And if that's so, is it legal for photographs? I don't know. I don't view it as moral. That's for sure.

It may be that Carol Highsmith intended more protection of the public interest than Public Domain provides. See https://en.wikipedia.org/wiki/Public_domain#Public_domain_like_licenses

More on what Public Domain means: https://en.wikipedia.org/wiki/Public_domain

[Robert Roaldi]

I sympathize with the other well-wishers for the lawsuit to succeed, but this is the post-competition era, we're in the Big Corp Economy now. That company is equally likely to swamp the person suing with myriad layers of legal roadblocks to try to starve out the plaintiff till they cry "uncle'. There will be a carefully calculated settlement amount and a non-disclosure agreement so that no one else can find out what went on. Will it change their business practices? Who knows, but I I'd bet against it. Does Getty need the goodwill of the photographic community? Did Apple care when they stopped Aperture? Did Adobe try to cater to those who don't like to rent software? Remember when the interweb was supposed to level the playing field.

[Sophia]

Hmm, I can't seem to produce the expected feelings of outrage and condemnation until I know all the actual facts (lawsuit allegations are not facts). Maybe I'm just too fatigued by (and frightened of) the daily ringing of those internet Pavlovian bells (not here).

[Oskar Ojala]

Egregious is a familiar word from Seinfeld's lawyer Chiles' trademark expression "It's outrageous, egregious, preposterous!" (makes for good pronunciation practice too). Link here: https://www.youtube.com/watch?v=X8rxPrV-tn4

As for the news itself, the expression above is apt. Hopefully Highsmith will get a sum large enough from Getty to discourage such behavior.

[John Robison]

Has Mr. Morel ever seen a dime of that 1.2 million? When I hear of awards against big companies I always wonder if their lawyers just appeal the judgement into oblivion until the person just grows old and dies.

[Jim]

A couple of years ago I received an email from Underwriters Laboratories (UL) demanding I remove a photo from my website that they claimed was theirs. I asked how they obtained the photo and they could not produce any evidence that they owned the photo.
I then showed them the original photo of mine which they claimed to own, which I had allowed a magazine to publish on their website. The magazine then allowed others to use it on their sites without identifying me as the source and ULs lawyers later decided to claim it as their own.
What really angered me was not so much their claiming my photo but the reason for their publishing it. The photo was evidence of Chinese counterfeiting and using fake UL registration numbers on computer cables - something I had been trying to get ULs attention about for several years but they just blew me off! When the magazine publicized it to a large audience they were finally interested but by then I had lost all respect for them. For two reasons!
Now I occasionally use tineye.com to track photos I have had published.

[Laurence Peters]

Check out this link to what I found to be a very enlightening article: https://www.entrepreneur.com/article/278622. The world today is all about making money for nothing. If you can actually make something, like a photograph, sculpture, or in the case of this article, a cat rug, hordes of people are waiting to make their buck off you. Why create something when there is money in not creating anything?

[Dalvorius]

'Temerity' is also well suited to Getty in this instance...

[David Cope]

RE: Don's featured comment.

Some very valid points there. I'm not sure I'm ready to put my pitch fork down yet.

Even if it is a bot (highly likely) the fact it can successfully identify an image within Getty's portfolio should also mean it should be able to check the rights status of said image before placing an invoice in the system. Of course if that status is wrong in the first place we get this result.

But from what else I read, this is not the first time this has happened, so something more systematic is going on perhaps. SNAFU or knowingly deliberate?

I'd be interested to know if and when a human enters the process - how and where in the chain of events does Carol Highsmith actually become identified as the owner of the "infringing" website? This would give another point of failure within Getty if someone is actually validating it's own bots.

[Arg]

The Oxford has two definitions of egregious; the first being current, the second archaic.
1. outstandingly bad
2. remarkably good

Originating from the Latin word for illustrious.

How about that?

[Alan Fairley]

To reply to Don: Ms. Highsmith is still the copyright holder of the photos AFAIK; she donated them to the Library of Congress under the terms of a written donation agreement, so I don't believe saying she "put them in the public domain," i.e., relinquished all her rights as creator and therefore initial copyright holder, is entirely accurate. Getty could well be violating a restriction on use in the donation agreement, thereby infringing her copyright rights. My personal opinion is that this is just more shameless corporate greed and overreaching, and I hope she wins a full judgment against the slimeballs.

[Alan Fairley]

Edit to my earlier comment: I have found a copy of the complaint that contains the original donation agreement, https://assets.documentcloud.org/documents/3001353/Filed-Complaint-Exhibits.pdf , and it does appear that this was a donation of all copyright rights to the public, so . . . .

[Alan Carmody]

It crosses my mind that in olden times people had incentives to refrain from this kind of behavior, namely, a choice of

1) Pistols at dawn or
2) A prospect of being horse-whipped around the block.

[Rob]

Matthew L: "From a legal point of view—and I'm not a lawyer—this is interesting. I don't know how public domain works with images specifically, but with respect to, say, software, when you place software in the public domain you give up all rights to it. By doing so, other people may use it as they see fit. You may not require anything of them, and they may use it in (or even as) a commercial product that they charge others for. They do not have to acknowledge you in any way."

If this legal theory is correct, perhaps it is so, because of how the laws are written and who is writing them, i.e. corporate lobbyists. But corporations know how to play the other side as well. For instance, we know that Disney got Congress to extend its copyright on Mickey Mouse so that they could continue milking that cash cow (errr mouse). At the same time, Disney has appropriated numerous public domain stories and characters that they then claim to own. Just try to use the name "Snow White" commercially, and you will get sued, even though the Brothers Grimm used it (in German) back in the nineteenth century.

[Oskar Ojala]

A small correction to Geoffrey Heard's excellent post. In Finland, speeding tickets and several other fines are multiplied by a factor depending on the offending person's income, which is obtained from the tax authorities. Parking violations are actually flat fee, sometimes leading to the problem described by Geoffrey. Incidentally, damage payments awarded in lawsuits are rewarded based on demonstrated damage incurred, not punitive damages as in some cases in the US. A comparison of the effects of different systems is indeed interesting.

[O]

Just to comment on the featured comment by Don: Parking fines here in Finland aren't propotional to the car's value, but speeding and other fines are charged based on a percentage of income. There was a big ruckus about it in the early 2000's when a fresh IT startup millionaire went over the limit by 20 km/h or so in his shiny new Ferrari and got a fine in the range of half a million euros.

[Don]

Since my attempt to "add some balance" has caused further umbrage, and false accusation, perhaps a word from counsel:

CAN ANYONE USE PUBLIC DOMAIN IMAGES?
Answer: YES, there are no restrictions on any use of public domain images, including making them available to users for a fee.

http://blog.digitalmedialicensing.org/?p=3444

It would be nice to revisit this case once we have an outcome. In the meantime might I suggest Google is a better target for accusations of copyright infringement and unjust enrichment.