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Copyright and licencing dispute between Getty and Carol Highsmith

American photographer Carol M. Highsmith has brought a copyright lawsuit under the Digital Millennium Copyright Act (“DMCA”) based upon the Defendants’ gross misuse of Ms. Highsmith’s photographs – more than 18,000 of them.

Since approximately 1988, Ms. Highsmith has made her photographs available to the public for free through the U.S. Library of Congress, thereby exercising her exclusive rights under 17 U.S.C. § 106 to distribute copies of her copyrighted work to the public by sale or other transfer of ownership, and to authorize others to do so. At no time did Ms. Highsmith intend to abandon her rights in her photographs, including any rights of attribution or rights to control the terms of use for her photographs, nor was it ever her intent to enable third parties to purport to sell licenses for her photographs, or send threating letters to people who used her photos. At all times relevant to this lawsuit, Ms. Highsmith’s intent has been that the public should be able to reproduce and display her work for free, with proper accreditation given to her and proper reference made to the Library collection. The agreement that Ms. Highsmith signed with the Library in November 1991 specifically addressed attribution issues.

According to lawsuit Getty has placed photographs authored by Ms. Highsmith (each a “Highsmith Photo”; collectively, “Highsmith Photos”) on Getty’s website – more than 18,000 of them. Getty has no contract or other agreement with Ms. Highsmith related to the Highsmith Photos and has not otherwise obtained any license, permission, or other grant of rights in the Highsmith Photos from Ms. Highsmith (other than the right to reproduce and/or display them for free, which she has granted to everyone).

For each Highsmith Photo appearing on the Getty website, Getty allegedly makes the image available on multiple pages on its website with materially false information regarding: (a) the name and other identifying information about the author of the Highsmith Photo; (b) the name of and other identifying information about the copyright owner of the Highsmith Photo; and (c) the terms and conditions for use of the Highsmith Photo. Nowhere on its website Getty identified Ms. Highsmith as the sole author of the Highsmith Photos. Likewise, nowhere on its website Getty identified Ms. Highsmith as the copyright owner of the work.

Claim states that Getty misrepresents the terms and conditions of using the Highsmith Photos by falsely claiming a user must buy a copyright license from Getty in order to have the right to use the Highsmith Photos. Nowhere on its website Getty identified the Highsmith Photos as being available to the public to reproduce and display for free, through the Library website. Getty has unjustly profited by selling copyright licenses for use of Highsmith Photos despite Ms. Highsmith having made the Highsmith Photos available through the Library for the public to reproduce and display, for free.

In December 2015, Ms. Highsmith received a letter addressed to her nonprofit organization from the Defendants accusing her of copyright infringement and demanding payment for displaying one of her own photographs on her own website. Ms. Highsmith subsequently learned that the Defendants have been sending out similar threat letters to other users of her photography, and that Getty and Alamy are purporting to sell licenses for thousands of her photographs on their commercial websites.

According to lawsuit Defendants are not only unlawfully charging licensing fees to people and organizations who were already authorized to reproduce and display the donated photographs for free, but are falsely and fraudulently holding themselves out as the exclusive copyright owner (or agents thereof), and threatening individuals and companies with copyright infringement lawsuits that the Defendants could not actually lawfully pursue. Furthermore, despite the fact that Ms. Highsmith objected to the Defendants’ conduct shortly after receiving the Defendants’ threatening letter, such brazen and extortionate conduct still continues to this day, as the Defendants continue to threaten users of Ms. Highsmith’s photography. Defendants continue to license these images, in exchange for money that they know they are clearly not entitled to collect.

Claimant calculated a sum of damages. According to their own counting, Getty has committed at least 18,755 separate violations of 17 U.S.C. § 1202, one count for each of the 18,755 Highsmith Photos appearing on Getty’s website. Thus, Ms. Highsmith is entitled to recover, among other things, and if she so elects, aggregate statutory damages against Getty of not less than forty-six million, eight hundred eighty-seven thousand five hundred dollars ($46,887,500) and not more than four hundred sixty-eight million, eight hundred seventy-five thousand dollars ($468,875,000). The unlawful conduct complained of herein is not Getty’s first violation of the DMCA, codified at 17 U.S.C. § 1202.

Getty was found by this US DC SD of NY to have violated 17 U.S.C. § 1202 within the last

3 years, and ordered to pay over $1 million in damages. Because Getty has already had a final judgment entered against it by this Court under 17 U.S.C. § 1202 in the past three years, this Court may treble the statutory damages in this case against Getty. Getty must therefore account for well over one billion dollars ($1B) in statutory copyright damages in this case.