The use of photographs and other digital images on the web can be a tricky business. Copyright owners are increasingly taking steps to police their images by monitoring web content using automated means like web scrapers. Many online content creators have had to learn the hard way about the pitfalls and best practices in the world of copyrighted online content. We’ve previously discussed these issues in other contexts. But a recent headline-making case has brought attention to yet another twist for online copyrights in the form of a billion dollar copyright suit.


A Public Gift

Carol Highsmith is a well-known photographer who has traveled all over America on a mission “to produce a nationwide visual study of the United States in the early 21st Century.” Through her non-profit organization devoted to this mission, Ms. Highsmith has donated her works to the Library of Congress, which has called her donation “one of the greatest acts of generosity in the history of the Library.” The Carol M. Highsmith Archive, which is expected to grow to more than 100,000 photographs covering the entirety of the United States, is accessible royalty-free via the Library’s website. The only condition for public access and use of the images is to attribute them to the Library of Congress’ Highsmith archive.

Meanwhile, stock photo agency Getty Images and other related companies such as Alamy have been selling thousands of Ms. Highsmith’s images to the public for a fee, without ever identifying Ms. Highsmith as the author or informing their customers that the photographs are actually available for free via the Library of Congress. Remarkably, Getty and its affiliates would have been able to continue flying under the radar had they not sent Ms. Highsmith a threatening letter accusing her of copyright infringement for using one of her own photographs on her website and demanding payment of $120!

The Digital Millennium Copyright Act

In response to the letter, Ms. Highsmith sued Getty and its related companies for violation of the Digital Millennium Copyright Act (DMCA), seeking more than $1 billion in damages based on 18,755 separate violations of the DMCA – one violation for each of Ms. Highsmith’s photos on the Getty website. Section 1202 of the DMCA makes it unlawful to distribute a work with false copyright management information, or to remove copyright management information altogether. “Copyright management information” includes work-identifying information such as the title and author of the work, but it also includes terms and conditions for use of the work.

The lawsuit accuses Getty and the other defendants of violating the DMCA by falsely holding themselves out as the exclusive copyright owner, and falsely claiming that a user must purchase a copyright license from Getty in order to use the Highsmith images. Thus, the lawsuit states, Getty and the other defendants have “misappropriated Ms. Highsmith’s generous gift to the American people.” So far, none of the defendants have filed a formal answer to the initial complaint. In a public statement, however, Getty acknowledged that the images are in the public domain, but still maintains that it has the right to charge a fee for distributing the material.

Join Jennifer Atkins and Kandis Koustenis in their discussion of this high-profile case and its implications for copyright ownership and attribution, the public domain, and the DMCA.

Photo credit: Martin de Witte