Dorothea Lange’s photographs of rural life, which she took for a U.S. government agency, are among the most famous images of Depression America: farmers, resettled ex-slaves, inhabitants of migrant camps, homesteaders and landscapes, they tell the story of a nation indomitably facing an uncertain future.
As we reported last week, the photographs belong to the nation. Lange was on assignment for the Farm Security Administration, one of a cadre of photographers and writers dispatched by New Deal official Harry Hopkins, in a remarkable act of service to posterity, to chronicle the challenges of the worst economic crisis in America’s history.
As long as Congress keeps shrinking the public domain by copyright extensions, tons of stuff that used to be public no longer is.
As a product of U.S. government employment, the images are in the public domain. Lange’s photographs of “migrant mother” Florence Owens Thompson and Washington farmer Chris Adolf, along with Walker Evans’ image of Alabama sharecropper Floyd Burroughs and thousands of other photos taken by other Depression-era photographers, can be downloaded by anyone as a digital file of pristine quality from the Library of Congress website, at no charge and without restriction.
But they also can be purchased from the commercial licensing firm Getty Images, for fees that can run to thousands of dollars, depending on how they’re to be used, how large they will be displayed, and how many people might see them. Getty’s library of public-domain images is vast, and its rates aren’t cheap.
This raises obvious questions. Why would anyone pay so much for something they can have for free? And is Getty acting legally?
These questions are at the heart of a lawsuit filed against Getty and others last week by Carol M. Highsmith, a photographer who donated her work to the Library of Congress, only to receive a nasty letter from a Getty subsidiary over her use of her pictures on a personal website. The letter warned Highsmith that she had infringed the license holder’s rights and demanded $120 in compensation. Her lawsuit asks for $1 billion in damages.
The case isn’t the first time that private exploitation of publicly available images has been an issue. Just last year, the veteran computer columnist John C. Dvorak wrote that he was “stunned by the number of free public domain images” being sold by Corbis, a photo agency then owned by Bill Gates. (Gates later sold Corbis to a Chinese consortium, which promptly licensed the collection to, yes, Getty Images.)
According to her lawsuit, Highsmith retains the copyright to her work; she simply donated to the public the right to reproduce and display her work for free. She argues that that prevents anyone else from asserting the right to charge for the images, and that any such claim is fraudulent.
The issues involved with Getty’s charging a fee for images whose copyright belongs to the public are somewhat different. Copyright experts say there’s no legal obstacle to charging money for that material, as long as the fee isn’t charged as a copyright claim.
“If this stuff really is in the public domain,” says Carl Malamud, a prominent warrior against copyright claims by government agencies, “you can use it any way you want, and that means for commercial purposes.” In other words, nothing stops Getty Images from acquiring the New Deal images from the Library of Congress on its own and charging others to download them from its own website. “To charge you is immoral, but not illegal,” Malamud says.
So what is Getty selling when it charges a client for the use of a publicly owned photograph? In an emailed statement, the firm says it’s selling such services as “image search tools and research support” to assist clients in “locating the right image for their needs.” Getty also provides specialized delivery methods for certain clients, including direct feeds into software apps.
Perhaps most important, Getty provides legal indemnification for the use of images taken from its inventory — in other words, if a client faces a lawsuit for infringing an unsuspected license or copyright, Getty will cover the cost.
Many people don’t understand that “ownership of copyright is distinct from ownership of the object,” cautions Robert Jacobs, a copyright expert at Manatt, Phelps & Phillips in Los Angeles. That means they could still be liable for copyright infringement even if they’ve paid for a specific image. “Clearing” copyrightable material for commercial use — that is, identifying its rights owners and obtaining their permission — is a complicated task that often challenges even professional publications.
Getty’s guarantee therefore is crucial for many clients, according to Richard Prelinger, whose archive of more than 60,000 historical advertising, educational, amateur and industrial films is accessible for free via the Internet Archive, and also for a fee via Getty Images. For users vulnerable to lawsuits, he says, Getty’s commitment to protect the licensee from liability is especially important given that the details of copyright law are too complex and changeable for many to follow on their own. “As long as Congress keeps shrinking the public domain by copyright extensions, tons of stuff that used to be public no longer is,” he says.
But a review of Getty’s public domain offerings suggests that the firm doesn’t always — if ever — inform buyers that the publicly owned images licenses are also available for free from public sources, though they’re not under any legal obligation to do so. But the absence of any such disclosure arguably could mislead customers into thinking that Getty is the only source.
For example, one image of sharecropper Burroughs, a sepia-toned color image on file at the Library of Congress, bears the credit, “Photo by VCG Wilson/Corbis via Getty Images.” Although a note on the image does state it was taken by Walker Evans, there’s no mention that the identical image can be downloaded in high resolution from the Library of Congress website for free and for unrestricted use. An unwary customer might assume that paying Getty — whose license fee can run to nearly $5,000 for a six-month term — is the only way to obtain the photo legally.
If you’re looking for material created for the government, it’s probably in the public domain and available for free. If you find it on the website of Getty Images or another commercial archive, they can charge a fee to send it your way. For the average consumer, the applicable rule is “buyer beware, and keep looking.”
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