Photographer Suing Getty Images for $1B • Hacker News Board

Re: Photographer Suing Getty Images for $1B

#101

Post by vvanders » Thu, Jul 28, 2016, 5:33 PM UTC

Ars has some good coverage of this as well: http://arstechnica.com/tech-policy/2016/07/photographer-sues...

> Lochting also underscored that LCS and Getty Images are "separate entities and have no operational relationship."

> However, DNS records show that LCS' listed address is 605 5th Avenue South, Suite 400 Seattle, Washington, which is Getty Images' corporate address, a fact that she would not explain to Ars.

> "It’s a no comment in response to your follow up questions," Lochting e-mailed.

Re: Photographer Suing Getty Images for $1B

#102

Post by wmil » Thu, Jul 28, 2016, 5:33 PM UTC

legohead wrote: post #94

Smushman wrote: post #14

Using some examples from the comments of the article: It's akin to Getty setting up a small tent inside of Central Park, and asking people that walk by to pay an entry fee. But Getty goes 1 step further: They hire strongarm guys to go around the park and tell people (one-on-one) that they skipped out on their 5 dollar entry fee and they can 'settle' with them right now or be taken to court. It's terrible. I can't ima…

Don't know why this needs an analogy at all. Getty [allegedly] took images that didn't necessarily belong to them, charged for them, and also sent copyright notices after anyone that hadn't paid for them. It's pretty simple. edit: allegedly

Well it's more likely that a photographer submitted a bunch of public domain images claiming he/she owned the copyright.

Then Getty images handled the situation poorly.

Look at another Getty case.

Haitian photographer Daniel Morel posted some photos to TwitPic. 'Lisandro Suaero' downloaded them and sold them to AFP / Getty. Then Getty tried to sue Morel. [1]

Morel was awarded 1.2 million [2]. Getty tried to use a weird argument that they had a deal with Twitter so they didn't owe him anything.

[1] http://blog.jeremynicholl.com/2010/05/03/afp-steal-photos-th...

[2] http://www.digitaltrends.com/social-media/1-2-million-lawsui...

Re: Photographer Suing Getty Images for $1B

#103

Post by jahewson » Thu, Jul 28, 2016, 5:35 PM UTC

Animats wrote: post #96

Read the court filing. She can win this. She owns the rights to the images. She licensed the Library of Congress to distribute them for free, but did not release them into the public domain. Getty is selling her images. That's a for-profit DMCA violation. The statutory penalty applies, which is from $750 per image to $30,000 per image. She makes a case that the higher end of the scale should apply, because some of he…

The DMCA isn't the most important part here, the (classical) infringement itself is the big factor, because the images are under the photographer's exclusive copyright. Adding the DMCA claim of falsifying copyright information certainly helps her case though.

Having said that, if it turns out that the library of congress is responsible for the infringements (because they published the images and labelled them incorrectly as being public domain) then Getty would be off the hook for infringement but the DMCA claim of falsifying the copyright information would still apply (as you can't claim exclusive copyright over a public domain work).

I suppose it's possible that an unscrupulous third party falsely licensed the "public domain" images to Getty, which would make Getty responsible for neither the falsification of copyright information, nor the infringement. I guess in that case Getty would still be found to have been infringing, but not deliberately.

Re: Photographer Suing Getty Images for $1B

#104

Post by logfromblammo » Thu, Jul 28, 2016, 5:39 PM UTC

pavel_lishin wrote: post #7

_yosefk wrote: post #3

Earlier quoted context omitted.

Your analogy is pretty precise up to the "naked" part. I've heard pretty bad things about Getty Images from their customers (much more expensive than competitors, much worse customer service.) Naked I've never heard...

I'm going to add a post-hoc rationalization that has something to do with it being a ballsy move, though I wasn't thinking of that at the time...

To distinguish from a nudist's casual disregard for garments and a hermit's inability to acquire substantial coverings, perhaps it would be better if Getty were not entirely naked, but instead had its underpants dropped to its ankles.

That says, "I own clothes, and usually wear them in a socially acceptable way, but I made an exception just for you and your formerly unstinky couch cushions."

Re: Photographer Suing Getty Images for $1B

#105

Post by dperfect » Thu, Jul 28, 2016, 5:41 PM UTC

legohead wrote: post #94

Smushman wrote: post #14

Using some examples from the comments of the article: It's akin to Getty setting up a small tent inside of Central Park, and asking people that walk by to pay an entry fee. But Getty goes 1 step further: They hire strongarm guys to go around the park and tell people (one-on-one) that they skipped out on their 5 dollar entry fee and they can 'settle' with them right now or be taken to court. It's terrible. I can't ima…

Don't know why this needs an analogy at all. Getty [allegedly] took images that didn't necessarily belong to them, charged for them, and also sent copyright notices after anyone that hadn't paid for them. It's pretty simple. edit: allegedly

The issue isn't really with Getty charging for those images. If they're in the public domain, then (as I understand it) the photographer has relinquished her copyright on the images. It's perfectly legal for other people to make money with them in that case, but that doesn't mean those other people own the copyright.

I think the issue comes into play when Getty tries to enforce a copyright they don't actually own by threatening people who use the images. That's where they've crossed a line, and I'm fairly confident that if Getty tried to sue anyone over it, the courts would decide in favor of the defendants. Of course, just defending oneself in court against someone like Getty could get expensive, so it's obviously better if the issue could be sorted out preemptively (as this photographer seems to be doing).

Re: Photographer Suing Getty Images for $1B

#106

Post by pbhjpbhj » Thu, Jul 28, 2016, 5:41 PM UTC

morninj wrote: post #72

dragonwriter wrote: post #66

Earlier quoted context omitted.

> Edit: "negligence" means you should have known of the risk. "Recklessness" means you knew of the risk but acted anyway. No, "negligence", in law, means you failed to act according to the duty of care you owed, which can include knowing about a risk but failing to act reasonably to mitigate it as much as it can include not knowing about a risk that one reasonably should have known about. Negligence and recklessness…

I'm not sure which law school taught you that, but it's just wrong. Here's a law review article that discusses the differences in mental state between negligence and recklessness: http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=...

In USA law isn't wilful blindness an example of what might be considered deliberate negligence in other jurisdictions?

Your link discusses the ill-defined nature of the middle ground, indeed if someone is apathetic as to whether the actions they take are negligent, those actions being deliberate, then it appears to fall in the even less well defined middle ground between recklessness and negligence. The link summarises with 3 conditions for recklessness, the first two being:

>As to recklessness, the better rule to apply is that requiring a strict test, i.e., the defendant must (a) actually know the course of conduct he is about to embark upon involves the probability of death or great harm to another, and (b) choose to risk occurrence of harm. (duke.edu link, ibid ) //

It primarily discusses criminal recklessness and only briefly touches on torts, as copyright infringement is, so I'm not really sure how relevant it is.

Perhaps you could comment on this imagined scenario:

A company deliberately includes CC-NC works (for example) in their morgue files and then neglects to check whether those works are then sold or included in the works that they chase up as infringements. Indeed they consider the problem but choose not to investigate whether they might be inadvertently charging for works that they have no rights to charge for, isn't there deliberate negligence there? They chose to avoid doing what the notional reasonable-man would consider to be necessary to avoid copyright infringement? They don't know they're infringing and so their actions aren't reckless??

TL;DR I propose that if you avoid acquiring the knowledge that would make you aware how reckless something were, you continue to be negligent just deliberately so.

(Didn't read your link entirely, sorry).

>"I'm not sure which law school taught you that" (morninj) //

Isn't the point of the link that judges don't even the line between negligence and recklessness correctly and that state laws muddy the line considerably; that "criminal negligence" should be an oxymoron under what the author considers to be proper interpretation of the USC. However, and correct me if I'm wrong, "criminal negligence" is a charge that is currently brought quite properly in various States of the USA.

IANAL just butting in with my tupenneth in the hope of getting educated.

Re: Photographer Suing Getty Images for $1B

#107

Post by dperfect » Thu, Jul 28, 2016, 5:43 PM UTC

Animats wrote: post #96

Read the court filing. She can win this. She owns the rights to the images. She licensed the Library of Congress to distribute them for free, but did not release them into the public domain. Getty is selling her images. That's a for-profit DMCA violation. The statutory penalty applies, which is from $750 per image to $30,000 per image. She makes a case that the higher end of the scale should apply, because some of he…

> ...did not release them into the public domain

This is incorrect. According to the Library of Congress:

"Ms. Highsmith has stipulated that her photographs are in the public domain." [1]

[1] http://www.loc.gov/rr/print/res/482_high.html

Re: Photographer Suing Getty Images for $1B

#108

Post by hackcasual » Thu, Jul 28, 2016, 5:48 PM UTC

dperfect wrote: post #107

Animats wrote: post #96

Read the court filing. She can win this. She owns the rights to the images. She licensed the Library of Congress to distribute them for free, but did not release them into the public domain. Getty is selling her images. That's a for-profit DMCA violation. The statutory penalty applies, which is from $750 per image to $30,000 per image. She makes a case that the higher end of the scale should apply, because some of he…

> ...did not release them into the public domain This is incorrect. According to the Library of Congress: "Ms. Highsmith has stipulated that her photographs are in the public domain." [1] [1] http://www.loc.gov/rr/print/res/482_high.html

Yeah, the Library of Congress isn't exactly a licensing body. Well I guess they technically are "the" licensing body, just not in the business of earning money doing it.

Re: Photographer Suing Getty Images for $1B

#109

Post by jahewson » Thu, Jul 28, 2016, 5:54 PM UTC

dperfect wrote: post #107

Animats wrote: post #96

Read the court filing. She can win this. She owns the rights to the images. She licensed the Library of Congress to distribute them for free, but did not release them into the public domain. Getty is selling her images. That's a for-profit DMCA violation. The statutory penalty applies, which is from $750 per image to $30,000 per image. She makes a case that the higher end of the scale should apply, because some of he…

> ...did not release them into the public domain This is incorrect. According to the Library of Congress: "Ms. Highsmith has stipulated that her photographs are in the public domain." [1] [1] http://www.loc.gov/rr/print/res/482_high.html

From the article:

> The photographer’s photos are listed on the library’s website as being in the public domain with “no known restrictions on publication.”

> However, Highsmith says she never abandoned her photo copyrights

Re: Photographer Suing Getty Images for $1B

#110

Post by dragonwriter » Thu, Jul 28, 2016, 5:59 PM UTC

jahewson wrote: post #103

Animats wrote: post #96

Read the court filing. She can win this. She owns the rights to the images. She licensed the Library of Congress to distribute them for free, but did not release them into the public domain. Getty is selling her images. That's a for-profit DMCA violation. The statutory penalty applies, which is from $750 per image to $30,000 per image. She makes a case that the higher end of the scale should apply, because some of he…

The DMCA isn't the most important part here, the (classical) infringement itself is the big factor, because the images are under the photographer's exclusive copyright. Adding the DMCA claim of falsifying copyright information certainly helps her case though. Having said that, if it turns out that the library of congress is responsible for the infringements (because they published the images and labelled them incorre…

> Having said that, if it turns out that the library of congress is responsible for the infringements (because they published the images and labelled them incorrectly as being public domain) then Getty would be off the hook for infringement

It seems to me that mislabeling wouldn't make the LoC legally responsible for the infringement, but might make Getty not liable for any infringement that happened entirely before they were made aware of the incorrect labeling. Or maybe not; since willfulness is an enhancement on liability for infringement liability [0], not a prerequisite, the fact that Getty did not know that the images were subject to copyright may not be a defense.

> I suppose it's possible that an unscrupulous third party falsely licensed the "public domain" images to Getty, which would make Getty responsible for neither the falsification of copyright information, nor the infringement.

AFAICT, that wouldn't necessarily legally relieve Getty of liability, though it would make the other party liable to the copyright owner for willful infringement, fraudulent claims of ownership, and contributory infringement (with regard to Getty's infringement), and also liable to Getty for fraud and potentially other torts.

[0] see, e.g., 17 U.S.C. Sec. 504(c)(2)