Grossman LLP | Photographer Seeks to Prevent Monetization of Archive Donated For Public Use
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  • Photographer Seeks to Prevent Monetization of Archive Donated For Public Use
    As we’ve discussed on this blog before, infringement of copyrighted works posted online is rampant, rendering artists marketing through social media vulnerable to infringement of their intellectual property.  A recent case highlights this risk to photographers posting their works online.

    In December 2015, photographer Carol Highsmith received a letter from License Compliance Services, Inc. accusing her of infringing the copyright in a photograph of the Nelson Atkins Art Museum in Kansas City, Missouri, which she had displayed on the website of her nonprofit organization, This is America! Foundation.  The letter accused the Foundation of lacking a valid license for using the image, and therefore claimed that its unauthorized use constituted copyright infringement.   Unfortunately for LCS, however, Highsmith herself had taken the photograph, and while she had made the image free for public use, she still owned the copyright.

    In 1988, Highsmith set out to donate her life’s body of work to the Library of Congress for free public use as the Carol M. Highsmith Archive.  And Highsmith continues to donate her new works to the archive, though she retains the copyright in all these works.   Upon receiving LCS’s letter, Highsmith responded that she was the author of the work, causing LCS wisely to abandon its demand for Highsmith to pay to use her own copyrighted image.   Highsmith then learned that a number of her other works from the Library of Congress archive had been appropriated by Getty Images, which owns LDC, and which was charging fees for the use of Highsmith’s photographs.

    Highsmith sued Getty Images and other defendants last week in the Southern District of New York.  Carol Highsmith v. Getty Images (US), Inc. et al., 16-cv-5924 (S.D.N.Y.)  Her works, as she alleges, were intended to be available to the public free of charge, with accreditation to her and with reference to the Library of Congress.  Highsmith alleges that by charging for the use of these images, Getty committed at least 18,755 violations of the Digital Millennium Copyright Act, one count for each Highsmith photograph appearing on Getty’s website without attribution to Highsmith as the sole author and without Highsmith’s permission.  Getty, the complaint alleges, had been unlawfully charging licensing fees to images it did not own, and falsely holding itself out as the copyright owner.  Highsmith claims that Getty’s actions have injured her reputation, harmed the value of her work, and infringed upon her exclusive rights as copyright holder.  She seeks  damages equaling the total revenue Getty received in licensing fees, which is revenue she would have received had she attempted to monetize the works.

    Highsmith also seeks punitive treble damages, as Getty was found to have recently willfully violated the DMCA in another unrelated matter, Agence France Presse v. Morel, 10-cv-02730 (S.D.N.Y.), where photographer Daniel Morel claimed that Getty had been charging others for use of his images posted on social media.  In Morel, Getty had argued that Morel had no copyright in the photographs under Twitter’s terms of service, granting (according to Getty) a nonexclusive royalty-free license to third parties to copy and distribute his photographs.  The court was not persuaded, holding that Twitter’s license grant extended only to Twitter and its partners and did not confer a right on others to re-use copyrighted images.  Morel succeeded in obtaining a $1.22 million verdict based on Getty’s willful copyright infringement.

    As Morel noted after his victory against Getty, “I hope the internet is going to be a little safer now for all artists,” emphasizing how difficult it is for small individual photographers to engage in long protracted legal battles with industry giants.  Highsmith’s Library of Congress archive is quite extensive and publicly available free of charge, but many artists and photographers essentially create small public archives of their work through their social media accounts; regardless of their intent to charge for use, however, such postings do not reflect and intent to forfeit copyright in these works.  It is unclear how much of a deterrent Highsmith’s case will have on potential infringers—Getty itself was found guilty of such similar behavior in Morel quite recently, yet it allegedly continues in this pattern of behavior undeterred.  For its part this time around, Getty has stated its intention to vigorously defend itself, noting that “it is standard practice for image libraries to distribute and provide access to public domain content” and that “image libraries are legally permitted to charge fees for use of images in the public domain.”  We await Getty’s answer to Highsmith’s complaint, and we will update this blog as the case develops.