Mon, Apr 1st 2019 9:42am — Mike Masnick
Back in 2016, we wrote about two separate lawsuits involving claims that Getty Images was selling “licenses” to images it had no rights to sell licenses to. The first one was brought by photographer Carol Highsmith, who sued Getty after Getty had sent a demand letter to her over her own images, which she had donated to the Library of Congress to be put into the public domain. That lawsuit mostly flopped when Getty pointed out (correctly) that Highsmith had no standing, seeing as she had given up the copyright in the photos. The second lawsuit was even more bizarre, involving questions about Getty’s rights to various collections it licensed, and whether it had changed the metadata on photos from photo agency Zuma Press. At the time, we noted that little in that lawsuit seemed to make sense, but it still went on for over two years before Getty prevailed, and basically said the only mistakes were done by Zuma.
Well, now we’ve got another lawsuit against Getty over allegedly licensing public domain images. This one was brought by CixxFive Concepts, and… also seems to be a stretch. How much of a stretch? Well, it starts out by alleging RICO violations, and as Ken “Popehat” White always likes to remind everyone: IT’S NOT RICO, DAMMIT. This lawsuit is also not RICO and it’s not likely to get very far.
This is a lawsuit brought by CixxFive, on behalf of itself and others similarly situated, alleging RICO, Washington Consumer Protection Act, and other claims against Defendants for fraudulently claiming ownership of copyrights in public domain images (which no one owns) and selling fictitious copyright licenses for public domain images (which no one can legally sell), including operating an enterprise of third-party contributors to perpetrate this egregious scheme.
Here’s the thing, though: you can still sell public domain images. You can do whatever you want with them. Of course, you can’t sue over infringement of them, but you can most certainly still sell them. Why do you think book publishers still make a ton of money selling the Bible, the works of Shakespeare, Dickens and others.
In the lawsuit, CixxFive correctly notes that Getty has NASA images in its database, and those are very clearly in the public domain.
Among the images that Getty and/or Getty US licenses are hundreds of thousands to millions of photographs that are in the public domain, including NASA images, White House press images, historical paintings and documents, and photographs that have been donated to the public domain by the authors.
For example, Getty and/or Getty US offers to let the user “Purchase a license” to a NASA photo of Saturn for $499.00 with “standard editorial rights” “or just $475.00 with an UltraPack,” which is a five (5) pack of assets for $2,250.00.
While this may be sleazy, it is hardly against the law.
These images are in the public domain. No one is required to pay Getty and/or Getty US a penny to copy and use them. And Getty has no right to sell copyright licenses for them, as it has done and is doing.
The first sentence is true, the second, not so much. Well, it can’t sell “copyright licenses,” as that is a misrepresentation over the rights that Getty Images has — but if it wants to try to get people to pay for stuff that is otherwise available for free, that’s Getty’s prerogative.
The part of the lawsuit that I don’t think will work, but is at least somewhat interesting, is the argument that this is somehow an unfair or deceptive practice. That’s moderately more compelling than the RICO claim.
One aspect of the deceptive nature of Getty’s and/or Getty US’s licensing scheme is that Getty and/or Getty US claims copyright on all of the content on its website. For example, the bottom of each page of its website states: “All contents © copyright 1999-2019 Getty Images. All rights reserved.”
Also, specific public domain images are overlaid on Getty and/or Getty US’s website with the © symbol followed by an entity or contributor name, indicating that the image is protected by copyright. The same © symbol and information is also provided next to the public domain image.
Getty’s and/or Getty US’s website terms agreement also states as follows: “Unless otherwise indicated, all of the content featured or displayed on the Site, including, but not limited to, text, graphics, data, photographic images, moving images, sound, illustrations, software, and the selection and arrangement thereof (“Getty Images Content”), is owned by Getty Images, its licensors, or its third-party image partners.”4
Getty’s and/or Getty US’s website terms agreement further states as follows: “All elements of the Site, including the Getty Images Content, are protected by copyright, trade dress, moral rights, trademark and other laws relating to the protection of intellectual property.”5
Getty’s and/or Getty US’s Content License Agreement also states, under the heading “Intellectual Property Rights,” as follows: “Who owns the content? All of the licensed content is owned by either Getty Images or its content suppliers.”6 (emphasis in original)
That part is at least a bit more compelling, but I’m not sure why CixxFive has standing to sue over that. It seems more like something the FTC or state Attorneys General could go after instead. CixxFive argues that it has standing to sue because it licensed some of these public domain images. But.. that seems to be on CixxFive. If it didn’t do the research to discover that those pictures were available totally free elsewhere, it’s not clear how that’s Getty’s fault.
The lawsuit also points to Getty’s infamous copyright trolling practices via its subsidiary License Compliance Services (LCS), but never actually shows that LCS has threatened anyone over the use of public domain material… other than raising the issue of Carol Highsmith, whose lawsuit we mentioned above, and which got thrown out of court.
I’m certainly sensitive to the slimy practices of Getty Images, and claiming that public domain images are available for license (at very high fees) is very slimy. But it’s not at all clear that it’s against the law. And it’s certainly not RICO.