Carol Highsmith, a respected photographer best known for her extensive catalogue of photographs documenting U.S culture, has issued a copyright infringement lawsuit against Getty Images. She is seeking US$1 billion in damages.
This action comes after Getty Images allegedly misused 18,755 of Highsmith’s photos by charging licensing fees for the images to their customers.
Highsmith has been submitting images to the U.S Library of Congress since 1988, and has had her donations referred to by one of the library’s directors Ford Peatross, as “one of the greatest acts of generosity in the history of the Library.”
The vast amount of submitted photographs includes the 18,755 images cited in Highsmith’s claim. As part of the Library’s collection the images are free to use by members of the public.
It is indeed possible that because of their free-use status Getty may have assumed the images were up for grabs. However, Highsmith maintains that though she did indeed happily allow her images to be submitted to the library, she clearly never gave up her individual copyright hold and in fact still requires any use of her photos to credit her. This means that Getty were potentially profiting off of publically available material they knew they did not have the right to use in this manner.
If this was the case, Highsmith’s lawyers state that “The Defendants have apparently misappropriated Ms. Highsmith’s generous gift to the American people.”
Where this affair gets especially awkward is the manner in which Highsmith discovered that her images were being used without her knowledge. Specifically, she was sent a letter charging her for copyright infringement by Getty Images over posting one of her own photographs to her own website. According to the lawsuit document, the company was, “fraudulently holding themselves out as the exclusive copyright owner” of Highsmith’s images. If this is so, it is one of the most cringeworthy moments in copyright history and likely happened when a Getty employee acted on an automated flag of the picture.
One of Highsmith’s major complaints is that Getty has allegedly continued this “extortionate” badgering of her and other users of her images for copyright claims and continued to charge for licensing of her photographs, even after Highsmith had informed them of the error.
In the suit, Highsmith actually claims she would normally be entitled to the figure of $468,875,000 dollars for this perceived transgression. However, a legal statute that penalises repeat copyright offenders allows the figure in new cases to be raised to up to triple the amount. Getty was recently ruled against (paying out $1.2 million) in a previous lawsuit brought to them by photog Daniel Morel. This ruling means they qualify to be forced to treble the payout figure to a sum of over US$1 billion dollars.
If Highsmith were to win the full amount of US$1 billion, she would get US$53,319 for each of the 18,755 photos Getty is alleged to have misused.
The potential lesson we should all learn here is, ‘just because you can use it, doesn’t mean you own it.’ Yet somehow my next door neighbour still hasn’t returned that ladder of mine.
(Cover image by Carol Highsmith)