Attorneys for Carol M. Highsmith filed a copyright lawsuit under the Digital Millennium Copyright Act (“DMCA”), 17 U.S.C. §§ 1202(a), 1202(b). The suit alleges the gross misuse of Ms. Highsmith’s more than 18,000 photographs. Companies named in the suit are Getty Images (US), Inc., License Compliance Services, Inc., Picscout, Inc., Alamy, Inc. and Alamy, Ltd.
Highsmith is a renowned American photographer noted for documentary photography. In December 2015, Ms. Highsmith received a letter addressed to her nonprofit, This is America! Foundation, from the Defendants accusing her of copyright infringement and demanding $120 payment for exhibiting one of her own photographs on her nonprofit website. She hence learned that Getty and Alamy were selling licenses of her photographs (for thousands of dollars) on their websites. To make matters worse, they were not crediting Ms. Highsmith as the author, but rather “falsely and fraudulently holding themselves out as the exclusive copyright owner (or agents thereof)”. Highsmith had previously donated all the photographs at issue to the Library of Congress for public use. The public has the right to freely reproduce and display those images. Despite Ms. Highsmith’s objection, the Defendants reportedly continued to threaten people and organizations using Highsmith’s photography. Copyright experts note that it is not illegal for companies to charge fees for public domain images so long as they do not claim copyright ownership or agent authorization. However, that does not permit a company to claim copyright infringement against people or organizations using those public domain images for which the company charges fees.
The suit states that Ms. Highsmith is entitled to recover “an award of statutory damages for each violation of section §§ 1202 in the sum of not less than $2,500 or more than $25,000.” It goes on to state that Getty has committed a least 18,755 separate violations of 17 U.S.C. §§ 1202 for each of the 18,755 Highsmith Photos appearing on Getty’s website. Based on federal copyright law, the suit claims Highsmith should be able to recover as much as $468 million in statutory damages. In the past three years, Getty was found by the New York Federal Court to have violated 17 U.S.C §§ 1202 and ordered to pay over $1 million in damages. Because of this final judgement against Getty, Ms. Highsmith may be allowed treble damages which would potentially bring the suit to over $1 billion.