Getty Images v. the Public Domain: Who Really Wins?

The public domain offers teachers, graphic designers, and anyone trying to design a website on a budget the opportunity to use millions upon millions of images without fear of infringing on the original author’s copyright. The images can be reused in their entirety or be remodeled into something new. They can be used for any sort of use whatsoever, whether that use is commercial or not. That is both the point and the beauty of the public domain. But what happens when pay-per-image stock photo sites take advantage of the public domain and start using the images in their own businesses? They get sued, of course. By people like photographer Carol Highsmith.

Highsmith has spent the last 30 years taking and donating photos to the public domain. Her goal was to have her photographs, the majority of which are of places around the United States, available to use for free. Her intent to do so is clear on the Library of Congress website, where her photographs are officially listed as part of the public domain. So you can imagine Highsmith’s surprise when Getty Images sent her a take-down notice demanding a payment of $120 for the display of her own photograph on her own, personal website. Highsmith soon realized Getty had taken 18,755 of her public domain images and had licensed them through its website. Getty was essentially charging its consumers for something they could have easily gotten for free, if they had only reverse image searched their desired images. That search would have lead them to places like Wikimedia Commons, which hosts Highsmith’s photos for free and displays the correct licensing information. Highsmith sued under the Digital Millennium Copyright Act (DMCA), and because Getty had violated the DMCA in the past, she was potentially entitled to cool $1 billion for the violation of her copyright in the photos.

Unfortunately for Highsmith, the district court didn’t see it her way, and dismissed all of her federal copyright claims, leaving only a few smaller state law claims that Highsmith and Getty settled over. Although an opinion has not yet been released, it seems like Judge Rakoff agreed with Getty’s defense that public domain works are routinely commercialized. By releasing her works to the public, said Getty, Highsmith gave away all her copyrights in the images, leaving Getty free to step in and make money off of her work.

Although this case seems like a win for Getty, it may not be a long term win. Getty, like most stock photo sites, runs on a business model that is focused on the ability to control access to its image library and enforce takedown notices against those who don’t license its images. And although the Highsmith case has shown that Getty can legally license photos from the public domain, it is unclear whether it can actually do so. It is likely Getty will be unable to enforce these licenses in any way, since consumers can get the identical image elsewhere on the internet. Even more likely and even worse for Getty, its consumers may just take their business elsewhere. Because why would anyone pay hundreds of dollars for something you can download in equal quality from Wikimedia for free?

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