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Photographer Claims Getty Images Wrongfully Appropriated Over 18,000 Photographs

Highsmith v. Getty Images (US), Inc., et al, 16-cv-05924 (S.D.N.Y. 2016)

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Carol Highsmith is a professional and well-known American photographer. Ms. Highsmith has photographed many iconic American landmarks, events and locations.

Starting in 1988, Ms. Highsmith began donating her work to the Library of Congress, and granted the public access to the documents royalty-free, so the public could reproduce and display the images without paying licensing or other fees. Ms. Highsmith claims she maintains the copyrights in the images.

Getty Images is a stock photo company that distributes photographs, video, music and multimedia products. Getty partners with artists to distribute their work throughout the world for use in newspapers, magazines, advertisements, movies TV, books and online media. Unbeknownst to Ms. Highsmith, Getty appropriated over 18,000 of her photographs, and threatened copyright infringement suits against people utilizing the photos, unless they paid a licensing fee to Getty (or one of its alter egos, including License Compliance Services, Inc. (“LCS”)). In addition, Getty failed to appropriately acknowledge Highsmith as the author of many of the photographs, and failed to recognize her as the copyright holder of her images.

Ms. Highsmith became aware of Getty’s actions when her own non-profit foundation, This is America! Foundation received a letter threatening legal action if it did not obtain a license from LCS on behalf of Alamy at Getty’s corporate address for one of Ms. Highsmith’s own photographs. Ms. Highsmith contacted LCS and advised them of her identity, her authorship of the image it claimed to have copyright in, and her agreement with the Library of Congress. After the conversation with a representative of LCS, Ms. Highsmith received notice that the case against her had been closed. However, even after Ms. Highsmith notified LCS of her copyright in the photographs, and its improper actions with respect to the images, Getty, LCS and Alamy continued their actions of obtaining licensing fees for, and misrepresenting the copyright holder of, Ms. Highsmith’s photographs.

On July 25, 2016, Ms. Highsmith filed suit against Getty, LCS, Alamy (jointly “Getty”) and others claiming copyright infringement. She claims that Getty has wrongfully benefited from licensing the images she donated to the public through the Library of Congress. On September 6, 2016, Getty requested to have parts of Ms. Highsmith’s Complaint dismissed, arguing in part, that Ms. Highsmith’s photographs are in the public domain, and that it is “impossible to infringe a copyright in [Ms. Highsmith’s] works, as no copyright exists.”

On October 28, 2016, Judge Jed S. Rakoff granted Getty Images’ motion to dismiss Highsmith’s claims arising under the Digital Millennium Copyright Act, the Lanham Act, and the New York common law of unfair competition. The Court denied dismissing Highsmith’s claims arising under the New York General Business Law § 349. Judge Rakoff stated he would issue a “memorandum explaining the reason for these rulings” in “due course.”