Carol Highsmith is a distinguished photographer who has traveled all over America, aiming to chronicle for posterity the life of the nation in the early 21st century. She’s donating her work to the public via the Library of Congress, which has called her act “one of the greatest acts of generosity in the history of the Library.” The Carol M. Highsmith Archive, which is expected ultimately to encompass more than 100,000 images, is accessible royalty-free via the library’s website.
So one can imagine Highsmith’s reaction last December when she got a threatening letter from a firm associated with the photo licensing agency Getty Images, accusing her of license infringement by posting one of her own images online. The firm demanded a “settlement payment” of $120 from her nonprofit This Is America! Foundation, backed up by the implicit threat to take her to court.
Getty misrepresents the terms and conditions of using the Highsmith Photos by falsely claiming a user must buy a copyright license from Getty.
Actually, one doesn’t have to imagine Highsmith’s reaction. One can read all about it in the lawsuit she filed this week against Getty in New York federal court, accusing the agency of illicitly claiming rights to 18,755 of her photographs and seeking more than $1 billion in damages. The lawsuit also names Alamy, a British-based licensing agency that was purportedly the license holder whose rights were infringed. Neither Getty nor Alamy had the right to claim a license or copyright on her photos, she says.
The letter came from License Compliance Services, an arm of Getty Images. Getty claimed to Cyrus Farivar of Ars Technica that LCS and Getty have “no operational relationship,” but Highsmith’s lawyers say that’s dubious. The two companies share corporate quarters in Seattle, as well as three top executives, they observe in the lawsuit.
Highsmith, 70, found several aspects of Getty’s behavior especially irksome, beyond the fact that the agency “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 use them. (Indeed, numerous publications, including The Times, have used Highsmith images with credits to Getty.)
Getty nowhere identified Highsmith as the sole creator or copyright owner of the photographs it was hawking to the public. Nor did it volunteer to its clients that the photographs were available for free, in high-quality digital format, from the Library of Congress.
That could damage her own reputation, Highsmith says, since it could look as if she’s been trying to profit from images she had ostensibly donated to the public: “Anyone who sees the Highsmith Photos and knows or learns of her gift to the Library could easily believe her to be a hypocrite.”
Neither Getty nor Alamy has filed a formal answer to the lawsuit. In a public statement, however, Getty responded with bluster. The agency says the lawsuit is “based on a number of misconceptions” and plans to “defend [itself] vigorously.” It acknowledges that the images are in the public domain, but still maintains that it has the right to charge a fee for distributing the material. “Distributing and providing access to public domain content is different to asserting copyright ownership of it,” Getty says. That’s true as far as it goes, but skates over the question of who gave it permission to distribute the content on any terms.
Alamy has said even less. An employee at its Brooklyn office said, “We’re looking into it and haven’t got any further comment.” Both agencies appear to have taken Highsmith’s photos off their websites.
What Getty and Alamy were thinking is unclear for the moment. But the case certainly underscores the confusion rampant in the world of digital rights. When images and content can be snarfed off the Web with a keystroke or the click of a mouse and reproduced in any format one wishes, who really can know who owns what? The path is wide open not only for stealing material with abandon, but for asserting rights illegitimately, as Highsmith says happened here.
Getty Images should be especially sensitive to the pitfalls of charging for rights it doesn’t own. Not only is it a professional agency that makes its living in the digital field, but it has been caught infringing digital rights before — in fact, its position as an alleged recidivist infringer is what allowed Highsmith to claim damages of more than $1 billion.
In 2013, a federal court jury found that Getty and Agence France-Press had “willfully infringed” a photographer’s copyright on eight photos from the 2010 Haiti earthquake that the photographer posted on Twitter, but had been reposted without permission by another photographer. Getty conceded liability and, along with AFP, was slapped with $1.5 million in damages.
The shame of the Highsmith case is that she has shown herself to be a most public-spirited artist. Her photographs, often awe-inspiring in their drama and color palette, amount to a rich snapshot of the people, structures and landscapes of America. She began donating her work in 1992, focused on an ambition to visit every state in the union. Her donations serve a tradition established by Dorothea Lange, the Depression-era photographer whose travels for the New Deal Farm Security Administration yielded an indelible portrait of America in its time.
Lange’s 1936 photograph of migrant mother Florence Owens Thompson of Nipomo, Cal., for instance, is a historical icon that belongs to the nation. If you wish to reproduce it, you can download it from Getty Images, for a fee that might exceed $5,000. Or, like Highsmith’s photos, you can download it for free from the Library of Congress, with no restrictions. The choice is yours.
3:28 p.m., July 30: This post has been updated to explain that all Library of Congress websites are down for weekend maintenance, and links to the Highsmith archive will be working again on August 1.
11:23 a.m., July 31: This post has been updated to reflect the restoration of access to Library of Congress websites.