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NYC Litigation Blog

Wednesday, September 21, 2016

Photographer Carol Highsmith Seeks $1 Billion from Getty for Copyright Violation

Are images in the public domain allowed to be sold by others?

Carol Highsmith is a celebrated photographer whose works have been featured in books, magazines, and even on two postage stamps.  Highsmith is also known for her willingness to share her images to the public, with thousands of her images currently available for free to citizens.  But when Highsmith was sent a letter accusing her of copyright infringement for using her own image on her web page, she took action.  Highsmith discovered that Getty Images was offering thousands of her images for sale for prices ranging from $175 to $575.  These images had been made available to the public through the United States Library of Congress. 

Highsmith filed a copyright infringement lawsuit in the Southern District, seeking $1 billion in damages.  Getty Images has publically stated that it will move to dismiss the lawsuit.  A spokesperson for the company said that it is standard practice for it and others to distribute content in the public domain and to charge fees covering the costs of indexing and digitizing content.  Highsmith counters in her legal action that in sharing the images with the Library of Congress, she did not intend to abandon the copyright to these images or to allow third parties to sell them.

Are Highsmith’s Images Protected by Copyright?

The Highsmith case raises several important issues concerning copyright law. One of the first areas that the court will need to address is whether Highsmith’s images are still subject to copyright protection, or whether they were now in the public domain.  Works in the public domain no longer have copyright protection, which could hinder Highsmith’s suit immensely.  However, it is unclear at this time whether Highsmith gave up copyright protection by donating the images to the Library of Congress.  It would be important to examine the agreement made between the two parties.

Can Others Sell Images in the Public Domain?

If the images are in fact in the public domain, the question still arises as to whether Getty and others like it can sell works in the public domain.  It could be argued that without copyright protection, Highsmith has no right to sue over the use of her images.  On the other hand, the for-profit sale of public domain items could be deemed questionable by the court.  


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