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Carol M. Highsmith
Photographer Carol M. Highsmith, in a screen grab from a C-SPAN interview. (Via C-SPAN.org)

Getty Images is being sued by photographer Carol M. Highsmith for the “gross misuse” of more than 18,000 of her images. The celebrated American photographer is seeking $1 billion in damages in her copyright infringement claim.

The news was reported by PDN Pulse, a blog from the professional photographic magazine Photo District News, among others, after the suit against Seattle-based Getty was filed Monday in federal court in New York. PetaPixel created a copy of the documents on Scribd.

According to PDN, Highsmith alleges that Getty and its subsidiaries have been charging fees for the use of her images without her consent. She has been providing thousands of her images to the Library of Congress for decades, for use by the general public at no charge. Her collection can be viewed online in the Carol M. Highsmith Archive, which is “expected to grow to more than 100,000 photographs covering all of the United States.”

Highsmith says she never abandoned her copyrights to the images, PDN reports, and that the Library of Congress “had agreed to notify users of the images that she is the author, and that users must credit her.” But her suit alleges that Getty distributed her images without her permission and failed to give her proper credit.

Torrent Freak reports that in December, the This is America! Foundation, a non-profit set up by Highsmith, received a letter from License Compliance Services (LCS) on behalf of Getty-affiliated Alamy:

“We have seen that an image or image(s) represented by Alamy has been used for online use by your company. According to Alamy’s records your company doesn’t have a valid license for use of the image(s). Although this infringement might have been unintentional, use of an image without a valid license is considered copyright infringement in violation of the Copyright Act, Title 17, United States Code. This copyright law entitles Alamy to seek compensation for any license infringement.”

The disputed image, below, is of the Nelson-Atkins Museum of Art and an installation called “Shuttlecocks” in Kansas City, Mo. The image is downloadable from the Library of Congress’ Highsmith archive with a rights advisory that reads “no known restrictions on publication.”

Carol M. Highsmith photo
(Carol M. Highsmith photo via Library of Congress)

Torrent Freak says LCS demanded $120 to settle the dispute, but it apparently opened up a can of worms after Highsmith discovered what Getty was allegedly up to in its use of her images. LCS quickly dropped its claim on the image it sought payment on, but Highsmith went to work on seeking her own compensation.

A Getty Images spokesperson provided the following statement to GeekWire on Thursday regarding the dispute:

We are reviewing the complaint. We believe it is based on a number of misconceptions, which we hope to rectify with the plaintiff as soon as possible. If that is not possible, we will defend ourselves vigorously.

The content in question has been part of the public domain for many years. It is standard practice for image libraries to distribute and provide access to public domain content, and it is important to note that distributing and providing access to public domain content is different to asserting copyright ownership of it.

LCS works on behalf of content creators and distributors to protect them against the unauthorized use of their work. In this instance, LCS pursued an infringement on behalf of its customer, Alamy. Any enquiries regarding that matter should be directed to Alamy; however, as soon as the plaintiff contacted LCS, LCS acted swiftly to cease its pursuit with respect to the image provided by Alamy and notified Alamy it would not pursue this content.

PDN and Torrent Freak report that Highsmith believes that Getty is liable for statutory damages of up to $468,875,000 for use of her images. But Getty lost another copyright case (Morel v. Getty) within the last three years, therefore Highsmith believes that the court has the power to triple the damages.

The Highsmith case comes on the heels of previous GeekWire reporting highlighting Getty’s copyright claims and how they are sometimes perceived by those on the receiving end. Aaron Bird, co-founder of a Seattle startup called Bizible, shared his concerns in June over what to believe when it comes to being asked by Getty to pay up for use of an image.

Learn more about Highsmith and her work via this 2011 video interview with C-Span.

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