That Coronavirus Image Is Public Domain, But That Won't Stop Getty From Trying To Sell You A $500 License To Use It

from the seriously,-guys? dept

Late last week, we wrote a nice story about how the infamous image of the coronavirus that is causing COVID-19 is in the public domain, since it's a work of the US federal government. That's part of the reason why it's everywhere these days:

But, as one of our commenters pointed out, that won't stop Getty Images from trying to sell you a license to the image (even complete with the CDC logo on it, which takes real balls by Getty) for an astounding $500.

I mean, the text with the image even directly says that it was created at the CDC. You'd think some worker bee at Getty might recognize that this makes it public domain.

Getty has a bit of a history of this, and was even sued by a photographer for trying to license images that she had put into the public domain. To be clear, Getty is not violating any law here. Something that's in the public domain is free for use in any manner, meaning that you certainly could try to sell it, though it does seem a bit sleazy and dishonest, especially at a time when news about the coronavirus is so important.

What would be problematic, of course, is if Getty actually threatened, sent DMCA takedowns, or sued over anyone using the image. Because that would be bullshit. It's a little unclear exactly how Getty got this image. It's listed as part of the "Smith Collection/Gado." However, it's hard to find out what exactly that means. There is a company called Gado Images, which mixes a bunch of buzzwords about AI with stuff about archiving photographs. I'm not sure I understand what one has to do with the other. It says it's using AI for "digitizing, capturing and sharing the world's visual history." And licensing it, perhaps. But if the images are not Gado's to share, then that raises a whole bunch of other questions.

Either way, the whole thing is pretty sleazy, and Getty should either (a) take it down, or (b) admit that it is public domain and make it freely available.

Filed Under: cdc, copyright, coronavirus, licensing, public domain
Companies: gado images, getty images

Getty Images Sued Yet Again For Trying To License Public Domain Images

from the this-keeps-happening dept

Back in 2016, we wrote about two separate lawsuits involving claims that Getty Images was selling "licenses" to images it had no rights to sell licenses to. The first one was brought by photographer Carol Highsmith, who sued Getty after Getty had sent a demand letter to her over her own images, which she had donated to the Library of Congress to be put into the public domain. That lawsuit mostly flopped when Getty pointed out (correctly) that Highsmith had no standing, seeing as she had given up the copyright in the photos. The second lawsuit was even more bizarre, involving questions about Getty's rights to various collections it licensed, and whether it had changed the metadata on photos from photo agency Zuma Press. At the time, we noted that little in that lawsuit seemed to make sense, but it still went on for over two years before Getty prevailed, and basically said the only mistakes were done by Zuma.

Well, now we've got another lawsuit against Getty over allegedly licensing public domain images. This one was brought by CixxFive Concepts, and... also seems to be a stretch. How much of a stretch? Well, it starts out by alleging RICO violations, and as Ken "Popehat" White always likes to remind everyone: IT'S NOT RICO, DAMMIT. This lawsuit is also not RICO and it's not likely to get very far.

This is a lawsuit brought by CixxFive, on behalf of itself and others similarly situated, alleging RICO, Washington Consumer Protection Act, and other claims against Defendants for fraudulently claiming ownership of copyrights in public domain images (which no one owns) and selling fictitious copyright licenses for public domain images (which no one can legally sell), including operating an enterprise of third-party contributors to perpetrate this egregious scheme.

Here's the thing, though: you can still sell public domain images. You can do whatever you want with them. Of course, you can't sue over infringement of them, but you can most certainly still sell them. Why do you think book publishers still make a ton of money selling the Bible, the works of Shakespeare, Dickens and others.

In the lawsuit, CixxFive correctly notes that Getty has NASA images in its database, and those are very clearly in the public domain.

Among the images that Getty and/or Getty US licenses are hundreds of thousands to millions of photographs that are in the public domain, including NASA images, White House press images, historical paintings and documents, and photographs that have been donated to the public domain by the authors.

For example, Getty and/or Getty US offers to let the user “Purchase a license” to a NASA photo of Saturn for $499.00 with “standard editorial rights” “or just $475.00 with an UltraPack,” which is a five (5) pack of assets for $2,250.00.

While this may be sleazy, it is hardly against the law.

These images are in the public domain. No one is required to pay Getty and/or Getty US a penny to copy and use them. And Getty has no right to sell copyright licenses for them, as it has done and is doing.

The first sentence is true, the second, not so much. Well, it can't sell "copyright licenses," as that is a misrepresentation over the rights that Getty Images has -- but if it wants to try to get people to pay for stuff that is otherwise available for free, that's Getty's prerogative.

The part of the lawsuit that I don't think will work, but is at least somewhat interesting, is the argument that this is somehow an unfair or deceptive practice. That's moderately more compelling than the RICO claim.

One aspect of the deceptive nature of Getty’s and/or Getty US’s licensing scheme is that Getty and/or Getty US claims copyright on all of the content on its website. For example, the bottom of each page of its website states: “All contents © copyright 1999-2019 Getty Images. All rights reserved.”

Also, specific public domain images are overlaid on Getty and/or Getty US’s website with the © symbol followed by an entity or contributor name, indicating that the image is protected by copyright. The same © symbol and information is also provided next to the public domain image.

Getty’s and/or Getty US’s website terms agreement also states as follows: “Unless otherwise indicated, all of the content featured or displayed on the Site, including, but not limited to, text, graphics, data, photographic images, moving images, sound, illustrations, software, and the selection and arrangement thereof (“Getty Images Content”), is owned by Getty Images, its licensors, or its third-party image partners.”4

Getty’s and/or Getty US’s website terms agreement further states as follows: “All elements of the Site, including the Getty Images Content, are protected by copyright, trade dress, moral rights, trademark and other laws relating to the protection of intellectual property.”5

Getty’s and/or Getty US’s Content License Agreement also states, under the heading “Intellectual Property Rights,” as follows: “Who owns the content? All of the licensed content is owned by either Getty Images or its content suppliers.”6 (emphasis in original)

That part is at least a bit more compelling, but I'm not sure why CixxFive has standing to sue over that. It seems more like something the FTC or state Attorneys General could go after instead. CixxFive argues that it has standing to sue because it licensed some of these public domain images. But.. that seems to be on CixxFive. If it didn't do the research to discover that those pictures were available totally free elsewhere, it's not clear how that's Getty's fault.

The lawsuit also points to Getty's infamous copyright trolling practices via its subsidiary License Compliance Services (LCS), but never actually shows that LCS has threatened anyone over the use of public domain material... other than raising the issue of Carol Highsmith, whose lawsuit we mentioned above, and which got thrown out of court.

I'm certainly sensitive to the slimy practices of Getty Images, and claiming that public domain images are available for license (at very high fees) is very slimy. But it's not at all clear that it's against the law. And it's certainly not RICO (dammit).

Filed Under: copyright, licensing, photography, public domain
Companies: getty images

Getty's French Office Sends Out Letters To US Websites Demanding They Take Down Anything Linking It To 'Legalized Extortion'

from the call-it-like-you-see-it dept

Getty Image's long history of copyright thuggery can be found all over Techdirt. This litany of uncivil public discourse finally resulted in it being force-fed its own medicine by a plaintiff who demanded $1 billion from the image licensing service for taking her public domain photos and adding them to the Getty library.

Thanks to some serious misjudgment, and incomplete knowledge of how national laws work, Getty has now (briefly) earned a reputation for another form of thuggery: censorship.

Matthew Chan runs Extortion Letter Info (ELI), a site that specializes in collecting threatening letters for various entities (usually copyright-related) and gives guidance on how to fight back against this form of speculative invoicing.

Chan, along with others, has been loudly critical of Getty's tactics. Getty likes to send out threatening letters and demand licensing fees for images it happens to see in use around the web. Visitors to ELI's forums are no less disdainful of the company than Chan is. And, the internet being the great communicator it is, this sort of criticism isn't limited solely to Chan's site.

Chan's site -- along with a couple of others -- somehow flew onto the radar of Getty's French office, which sent out a completely ridiculous letter demanding not only that Chan's criticism of the company be removed from his site (and others), but EVERY DEROGATORY COMMENT made by site visitors to be taken down as well.

Sir,

I am the legal adviser of the company GETTY IMAGES.

The company GETTY IMAGES is the biggest global database. Its main activity is the supply, development and worldwide distribution of online images, videos and music under which many communication professionals made use.

Indeed, it enjoys an established reputation both domestically and internationally. However, my client found many comments which seriously jeopardize its practice on your web site www.extortionletterinfo.com …..

Indeed, the combination of the words «GETTY IMAGES» and «extortion» or «arnaque» (fraud) on the search engine Google bring us directly to your web site.

Furthermore, the regularity of the methods and of the proceedings used by our client had also been questioned, which have been described as «legalized extortion» and «Extortion Letter Scheme».

[...]

According to the judgment given by the First Civil Division of the French Supreme Court on the 12th of July 2012, this is particularly intolerable and reprehensible.

Those acts of gross disparagement seriously damage GETTY IMAGES’ image.

A similar letter [PDF] was received by The Hacker Factor Blog and Zyra.info. Chan and The Hacker Factor both responded in detailed fashion to the French legal stupidity apparently resulting from Getty Image France's legal rep Vanessa Bouchara's Google search for "reprehensible" terminology. (The third site took down the image/criticism, but left up a notice telling readers about Getty's censorship.)

Both responses to Getty pointed out the obvious: parlez-vous US law, motherfuckers?

From Chan's response:

Regardless of which corporate entity you represent in France, I inform you of the following:

1.   I am a U.S. Citizen who lives and work in the U.S.

2.   I do not have any business interests in or solicit any business from France.

3.   My websites are hosted in the U.S., written in English, and primarily targets American readers.

As such, any content you or your client may object to on my website all firmly within the realm of U.S. laws and the First Amendment. I do not see how you can threaten me with a lawsuit being brought in a country in which I have no contact, connections, or involvement.

[...]

French law might have jurisdiction over you, your law firm, and your client operating in France. But I cannot see any way whatsoever how French law applies to me or my websites.

From the very detailed and well worth reading response by The Hacker Factor:

As noted in the 2014 letter from Getty Images, they list their address as "605 5th Ave S, Suite 400, Seattle, WA 98104 USA". Moreover, they sent their letter to my address in Fort Collins, Colorado, United States. Neither of these addresses is in France.

My 2014 blog entry includes my response letter. At the top of the response letter are the addresses of the sender and the recipient. Again, the correspondence was from a US citizen in the United States of America and to a company in the United States of America.

At no time was there any mention of France or Getty Images in France. The country of France has no jurisdiction in a discussion between a US citizen and a US company. Your repeated citations of French laws have no basis since this falls under the jurisdiction of US laws.

Someone at Getty's US HQ is now in a terrible mood. Getty's reputation in the US is far from impeccable, and now they have to deal with a French interloper throwing a one-lawyer Streisanding via international mail. An apology and retraction has already been sent to ELI and a few other sites that were affected.

Dear Sirs/Madam,

Whilst operating as Getty Images’ French legal advisor, we sent you a formal letter dated December 23th 2016, asking you to cease and desist perceived libelous activity on your site.

Please disregard our previous letter, it was sent in error and accept our sincerest apologies.

Yours sincerely,
Vanessa Bouchara

It's hard to say how many people were involved in this debacle as Vanessa Bouchara uses the royal (and somewhat exculpatory) "we" in her communications, but whoever was behind it needs to spend a bit more time getting to know the limits of their local laws.

Filed Under: copyright, copyright trolling, criticism, france, legalized extortion, matthew chan, us
Companies: getty images

Be Careful About Turning Image Search Into An Antitrust Complaint

from the it-might-just-backfire dept

Have you ever used the internet to search for photos of a potential vacation spot? Or perhaps you've Googled some pictures of furniture you wanted to buy? Who hasn't, right?

But if Getty Images gets its way, you may have far fewer viewing options. That's because Getty recently wrote a letter to the Senate Judiciary Committee urging its members to turn a failed copyright claim into an antitrust issue.

Getty's main contention -- not antitrust-related at all -- is that internet-search results display images without authorization from the copyright holder, and thus infringe copyright. But the courts haven't agreed.

One reason we have the internet is that the Supreme Court back in 1984 held that making a home recording of a movie for personal playback without prior authorization is a "fair use" under the copyright law.

When the internet came into being, this consumer "fair use" determination opened the door of the internet to consumers, rather than limiting it to businesses and government exchanging data among themselves.

The courts ruled that consumers could also participate by searching for text and images. What this meant for online images and Google's search engine was decided 10 years ago in the court of appeals copyright case Perfect 10 v. Amazon. In that case, image search and display as carried out by Google was determined to be not infringing.

Getty's letter complains about enhancements that Google made back in 2013, to better allow consumers to compare the images in their search results. The letter claims that it is "anti-competitive" for Google now to allow users to inspect a variety of images more closely, to choose the best one, while the high-resolution images themselves remain only on the provider's -- not Google's -- site. (Would they have complained if Google had downloaded and offered these itself? Of course.)

A proprietor might consider this option to compare as "anti-competitive," but for a consumer, comparison is the essence of competition.

The evolution of image search reflects a better understanding of what users want and an effort to give it to them. Google, Yahoo and Bing's search engines all use a variety of signals to determine relevant and useful search results, including images. Dumbing down search is a bad deal for consumers, and is neither required by nor consistent with sound competition policy. And even though these searches are lawful, Google and other search engines provide a simple tool to opt any image out of search. Getty's letter acknowledges, but dismisses, this fact -- because as everyone knows, it is image search that drives business to Getty and its competitors.

Getty is a major player in its field, and its image collection is even bigger after recently locking up more content in the stock-photo market through an exclusive licensing deal with Corbis, once a rival stock-image company. But concern about new entrants (such as Adobe) is classic incumbent behavior, especially when threatened by innovation. (Google does not compete in the stock-photo market, and is not a rival player in this area.)

Search drives traffic to all photography websites, not just Getty's. Making search work better for users and creators is not a violation of copyright law, and we should be very cautious before we start claiming that facilitating competitive search is an antitrust violation.

Gary Shapiro is president and CEO of the Consumer Technology Association (CTA), the U.S. trade association representing more than 2,200 consumer technology companies, and author of the New York Times best-selling books, Ninja Innovation: The Ten Killer Strategies of the World's Most Successful Businesses and The Comeback: How Innovation Will Restore the American Dream. His views are his own. Connect with him on Twitter: @GaryShapiro

Filed Under: antitrust, copyright, fair use, image search, images
Companies: getty, getty images, google

Photographer Sues Getty Images For $1 Billion For Claiming Copyright On Photos She Donated To The Public

from the one-billion dept

Getty Images has a bit of a well-deserved reputation as a giant copyright troll, sending all kinds of nasty threat letters to people who use the images that Getty licenses. And even though it's showed some signs of adapting to the modern internet world, it hasn't given up on its standard trolling practices. It's also famously bad at it, often sending absolutely ridiculous threat letters.

But it may have sent one so stupid that it could potentially cost Getty itself a lot of money. That's because it sent a threat letter to famed photographer Carol Highsmith... demanding she pay up for posting her own damn photo. That would be bad enough on its own... but it's actually much, much worse. You see, Highsmith is such a wonderful person that she donated a massive collection of her photographs to the Library of Congress -- over 100,000 of them, for them to be released royalty free for the public to use. She didn't put them fully into the public domain, though, instead saying that anyone could use them so long as they gave credit back to her. It was basically a very early kind of version of what's now known as the Creative Commons Attribution License (which didn't exist at the time she made that agreement with the Library of Congress).

And, so here was Getty Images claiming that it held the copyright on these photos, demanding that Carol Highsmith pay up for using her own photograph, which she had deliberately donated to be used freely.

That's... not legal.

So Highsmith is now suing Getty Images for violating Section 1202 of the DMCA (part of the DMCA that doesn't get nearly as much attention) for falsifying copyright management information.

The Defendants have apparently misappropriated Ms. Highsmith’s generous gift to the American people. The Defendants are not only unlawfully charging licensing fees to people and organizations who were already authorized to reproduce and display the donated photographs for free, but are falsely and fraudulently holding themselves out as the exclusive copyright owner (or agents thereof), and threatening individuals and companies with copyright infringement lawsuits that the Defendants could not actually lawfully pursue.

As described further herein below, the conduct of the Defendants runs afoul of the DMCA’s provisions proscribing the removal, modification and falsification of “copyright management information,” unlawful conduct that has injured Ms. Highsmith, thereby entitling Ms. Highsmith to the relief sought herein.

The lawsuit notes that despite informing Getty that it was in the wrong, the company continued to demand money from other people making use of her photographs. She also notes that this is not the first time Getty was found to be violating DMCA 1202, and that justifies a much larger monetary punishment.

Getty has committed at least 18,755 separate violations of 17 U.S.C. § 1202, one count for each of the 18,755 Highsmith Photos appearing on Getty’s website. Thus, Ms. Highsmith is entitled to recover, among other things, and if she so elects, aggregate statutory damages against Getty of not less than forty-six million, eight hundred eighty-seven thousand five hundred dollars ($46,887,500) and not more than four hundred sixty-eight million, eight hundred seventy-five thousand dollars ($468,875,000).

The unlawful conduct complained of herein is not Getty’s first violation of the DMCA, codified at 17 U.S.C. § 1202.

Getty was found by this Court to have violated 17 U.S.C. § 1202 within the last 3 years, and ordered to pay over $1 million in damages.

Because Getty has already had a final judgment entered against it by this Court under 17 U.S.C. § 1202 in the past three years, this Court may treble the statutory damages in this case against Getty.

Getty must therefore account for well over one billion dollars ($1B) in statutory copyright damages in this case.

The $1 billion number is a bit extreme, but it is true that Getty doesn't seem to care at all, and has been shaking down people for ages, sometimes over rights it does not hold. As the lawsuit notes, since Getty doesn't seem interested in changing its practices, perhaps a more stringent award is necessary.

If you're wondering about the previous case mentioned above, it's another one that we covered -- the weird and wacky case involving photos from Daniel Morel that were taken in Haiti, leading to a mess of a lawsuit (where almost everyone was totally confused at the beginning) that ended in Getty having to pay up for distributing a photo with incorrect attribution.

The lawsuit also goes after a smaller Getty competitor, Alamy, that is doing the same thing, and some Getty subsidiaries, LCS and Piscount, who, again, are doing the same thing (in fact, the threat letters Highsmith received were from Piscount and LCS). To make matters even more confusing, even though Alamy is a Getty competitor, it uses a Getty subsidiary, LCS, to send out threat letters demanding cash. The lawsuit explains that Highsmith called up LCS and had to talk with them for half an hour convincing them that she was the photographer, she holds the copyright and the images are all available royalty free for anyone to use (with credit back to Highsmith). LCS then informed her that the case against her "was closed" but... continued to shake down others using her images. That makes things look even worse for Getty in this lawsuit, because she can show at least some level of knowledge that they were making fraudulent copyright claims.

This should certainly be an interesting case to follow...

Filed Under: attribution, carol highsmith, copyright, copyright troll, copyright trolling, dmca 1202, library of congress
Companies: alamy, getty images, lcs, piscount

And Out Come The Wolves: Now Getty Images Files EU Antitrust Complaint Against Google About Image Piracy

from the uh,-why-not-a-copyright-complaint? dept

With the EU making the first big antitrust move against Google in the EU over Android bundling practices (and more still expected over search), it seems that lots of other companies that have had trouble adapting to the internet are coming out of the woodwork to file complaints of their own (well, everyone except Microsoft, which has agreed to drop its complaints -- despite kicking off much of the EU antitrust focus on Google). Last week, we wrote about News Corp. confusingly arguing that Google News was an antitrust violation, because it both linked to its content and because it wouldn't link to its content (don't ask me, I don't understand it either).

Next up? Getty Images complaining about Google Images. According to Time, Getty has filed an antitrust complaint against Google in the EU, apparently arguing that Google's image search is undermining Getty's licensing business and "encouraging piracy."

Photography company Getty Images is accusing Google of scraping images from third party websites and encouraging piracy, adding a new wrinkle to the Mountain View, Calif.’s ongoing legal battles in Europe.

In its complaint to the European Union’s antitrust commission, Getty says Google Images, which displays full-screen slideshows of high-resolution copyrighted images, has hurt the stock agency’s licensing business as well as content creators worldwide. Google first introduced the feature in Jan. 2013. Previously, the search engine only displayed tiny thumbnails of images.

Getty has not actually released the complaint but put out a press release with a few more details and had its General Counsel Yoko Miyashita, post an open letter. The big issue, it seems, for Getty is that three years ago Google made its Images search act a little different, in that you can display full resolution images, rather than just purely thumbnails. Getty claims that this is decreasing the rate of clickthroughs to its site, where it might be able to extract some licensing fees.

Getty, of course, has a troubled history with the internet. It has a pretty long history of fairly idiotic bouts of pure copyright trolling, demanding cash as a bully, often in cases where there was no legitimate infringement at all. We were cautiously optimistic a couple of years ago, when the company finally started experimenting with offering up images for free, via a system that would let you embed many images (though there were some concerns about the setup and conditions).

Reading between the lines, it sounds like that effort has not taken off to the level Getty had hoped... and rather than recognizing that people just aren't comfortable with embedding images from Getty (or that they don't really know about the program), the company appears to be blaming Google Image search. And that's doubly weird since an actual analysis of why Getty's internet efforts haven't taken off shows that it's got nothing to do with Google's Image search and everything to do with cheap stock photo sites and Getty's inability to understand basic search engine marketing practices. Rather than take that to heart and adapt, the company joins many others in just whining about another company that is more successful.

The whole complaint is confusing. Most people searching Google Images aren't going to be licensing a photo in the first place. People who are looking to license a photo go elsewhere. So it's not like Google Images is likely to have a real impact on Getty. But that's not how Getty sees it:

Because image consumption is immediate, unlike other mediums searchable through Google, such as news or music, once an image is displayed in high-resolution, large format, there is little impetus to view the image on the original source site. These changes have allowed Google to reinforce its role as the internet’s dominant search engine, maintaining monopoly over site traffic, engagement data and advertising spend. This has also promoted piracy, resulting in widespread copyright infringement, turning users into accidental pirates.

Of course, this is interesting, because you'll note that Getty isn't filing a copyright case here, it's filing an antitrust case. If this were really about "piracy" why not file a copyright case? It's because Getty knows damn well it would lose any such copyright case. And it would lose badly. So it's filing this antitrust case as a sort of backdoor copyright case, hoping that in the EU's current hatred towards Google, regulators won't pay attention to the nuances.

Getty Images’ General Counsel, Yoko Miyashita says: “Getty Images represents over 200,000 photojournalists, content creators and artists around the world who rely on us to protect their ability to be compensated for their work. Google’s behavior is adversely affecting not only our contributors, but the lives and livelihoods of artists around the word – present and future. By standing in the way of a fair marketplace for images, Google is threatening innovation, and jeopardizing artists’ ability to fund the creation of important future works. Artists need to earn a living in order to sustain creativity and licensing is paramount to this; however, this cannot happen if Google is siphoning traffic and creating an environment where it can claim the profits from individuals’ creations as its own.”

I've read this four times now and none of it makes sense. Again, people searching Google Images aren't looking to license images. Getty is breezily mixing up very different markets because of just how weak its overall argument is here. Also, the whole "artists need to earn a living" bit is similarly misleading. It's a favorite line that comes up over and over again but is bullshit. Most artists don't earn a living doing artwork. That's just a fact. That's true with copyright and without. It's not the copyright that pays people. It's having a good business model that people find worth supporting. That's it.

And, really, if Getty were really in this to help photographers get paid, then why is it so easy to find photographers online bitching about the ridiculously low royalties that Getty Images pays? This isn't about helping photographers get paid. This is about Getty Images and the fact that it hasn't figured out how to make a compelling product on the internet.

And, going back to the way in which Google displays images, it does so because it knows that it's providing a better consumer experience. When people are looking for images online, they want to see the images, and thus Google is delivering what people want. Getty may not like that, because it hoped that Google would fail to deliver what people want, thereby forcing them over to the also terrible Getty Images experience, but it's difficult to see how that's an antitrust issue. If Getty wants to compete, why doesn't it compete? Build a better image search engine and layer its business model on top of it.

But, no, instead, it whines to the EU about "antitrust" and pretends that it's helping photographers, all while making sure they get only a tiny percentage of any money that Getty actually makes from selling their photos.

Filed Under: antitrust, competition, copyright, eu, google images, stock images
Companies: getty images, google

2600 Explains Eloquently How Excessive Copyright Harms Everyone

from the chilling-effects dept

Last week, we wrote about how the famous hacker magazine 2600 received a copyright threat letter concerning the cover of its Spring 2012 issue (which, we noted, meant that the three-year statute of limitations had passed for a copyright claim anyway). But this was even worse, because the "claim" was over some ink splotches that were in the background of an image that the threat letter claimed copyright over, and which 2600 used a tiny bit of on its cover. Except... that the splotches themselves were actually from a Finnish artist going by the name Loadus, and licensed freely for either commercial or non-commercial use. The orange is the magazine cover. The purple is the image the copyright threat letter was about and the green is the actual painting that is freely licensed.

There was some confusion over who sent the threat letter, as it officially came from a company called Trunk Archive, but was sent by a company called License Compliance Services (which appears to be a copyright-troll-for-hire business), but also used an entity called Picscout which is owned by notorious copyright troll Getty Images. Either way, after 2600 pointed out how ridiculous this was, License Compliance Services sent a ridiculous email saying the matter had been closed:

Subject: Case #373018082 , Ref #4440-1159-6664

Hello, I just wanted to take a moment to inform you that after further review this matter has been closed.

Regards,

Madison Streete
License Compliance Services
P. 1.855.387.8725
E. lcs@lcs.global
605 Fifth Avenue South, Suite 400
Seattle, WA 98104

For what it's worth, that address is also the address of Getty Images, so it appears that LCS may be a part of Getty Images after all.

Either way, 2600 points out that this response is fairly ridiculous, given that the company just tried to shake 2600 down for a large sum of money based on a totally bullshit claim. And from there, 2600 goes off on a nice and wonderful rant about the stupidity of copyright maximalism, and the belief that everything must be licensed and paid for. It's wonderful and you should read it:

We're talking about the attempts to license everything under the sun, using high technology to match the tiniest of images, and crushing the very concept of fair use. Art has always been derivative and transformative - our cover at the center of all this is a great example of such a work (just not with any of Trunk Archive's material). But by making people look over their shoulders whenever they try to create something unique using elements of existing works, a chilling effect is created that will result in less works being created. This is also bad for the original artist, who is robbed of the opportunity to see how their creation can be adapted and transformed into something completely different. But in the end, we are all hurt by this kind of thing. Creations such as remixes of music, mashups, new arrangements and interpretations, parody, patchworks of images, logos and pictures captured on film, snippets of code - they can all be identified and monetized. That neat little app on your phone that can identify music? Imagine that going out and automatically charging a fee for anyone who has captured a bit of that music on something they created. Every corporate logo you capture in a picture would also have to be paid for. Imagine where this technology can take us in the next few years if this unbridled greed isn't reigned in.

This has nothing to do with art as most any artist will tell you. It's about control and intimidation, using the prospect of payoffs to lure in unsuspecting contributors. With that in mind, the LCS/Trunk Archive slogan of "Creations Are Valuable" makes sense in a much more opportunistic light. That's why we need to make sure this derivation of art never catches on. Our case may be over, but this is a fight that is only just beginning.

Amen.

Filed Under: copyright, copyright trolling, culture, licensing, sharing
Companies: 2600, getty images, license compliance services, trunk archive

Getty Images Tries To Copyright Troll 2600 Magazine Over Content It Has No Copyright Over

from the total-failure dept

So, we were just discussing Getty Images' latest foray into ridiculous copyright trolling (something the company has a long history with), by demanding money for a meme image used on a blog. Today, we have another example of Getty Images copyright trolling that is even worse. It's so bad, that Getty Images doesn't even have a legitimate copyright claim here at all, let alone abusing a legitimate copyright to shakedown someone. The target? The famed hacker publication 2600, which a Getty subsidiary, Trunk Archive, claimed was infringing on one of its images. The cover is actually from 2600's Spring 2012 issue, which you can see below: Already we have a slight problem in that the statute of limitations on copyright in the US is... three years. Spring of 2012? Yeah, once we hit, say, June of this year, that ship had sailed. So it seems doubly odd that Trunk Archive began its shakedown in August of 2015. But, of course, you might be wondering what the hell is infringing in that image -- especially when you learn that this is the image that Trunk claims is infringing: Yeah, those two images look nothing alike. Except, the eagle eyed among you may notice that the ink splotches in the lower right corner of the 2600 cover look like the ink splotches in the upper lefthand corner of this image. Yup, it's a match: Okay. So, now, even if that lower image is covered by a copyright held by Getty Images (or where it's representing the copyright holder), this is already a ridiculously weak claim. Using the corner splotches of one image on a totally different image? I think there's a pretty strong fair use claim here. Like, insanely strong.

But, the story is even worse than that. Because Getty doesn't hold the copyright (or represent the copyright holder) for those splotches. That's because the artist who created 2600's cover kept track of how that image was created, and noted that he was actually using this splotch painting from a Finnish artist who goes by the username Loadus on Deviant Art -- and it appears that whoever took the photograph of that dude standing in front of a painting was using that same image. In other words, whatever copyright there is in those splotches belongs to that Finnish artist Loadus, and not the photographer who took the image of some dude standing in front of it. Here, 2600 has overlaid the situation on the full painting: So even if Getty/Trunk is legitimately representing the photographer of that image, it is not representing the artist who made the painting in the background that also produced the splotches used by 2600 -- and even if it was, this is clearly fair use and beyond the statute of limitations. As 2600 notes:

So not only is Trunk Archive trying to scare people into paying them for images, but they're apparently doing this for images they have absolutely no connection to. This insanity needs to end. In the first place, our use of such an image easily qualifies as a transformative work under the fair use doctrine. The absurdly minimal amount of the image used also would qualify it for protection. And then there's the little fact that they have no right to be telling anyone what to do with this image in the first place since they don't even own it. By their own rules, they ought to be cutting a sizable check to Loadus for what are undoubtedly countless uses of his art.

It's indeed impressive that Trunk Archive managed to match these little ink splotches. That's where the coolness factor ends. We cannot tolerate artists being threatened for creating derivative or transformative works. If this were to stand consistently, all forms of art would soon grind to a halt as none could be created without constantly paying off these people. Most others aren't like us - they aren't lucky enough to have lots of people defending them and spreading the word. What happens in their cases is that they are forced to either pay up, be hounded, or hire an attorney that will wind up costing more than the settlement being demanded. If we allow that to happen, creative expression will suffer across the board.

For now, calling attention to these abuses is what's needed. Joining with existing legal action or beginning new challenges to stop this sort of thing in the future is essential. We intend to continue with all of this. We thank Trunk Archive for opening our eyes to this abuse and helping to get us actively involved.

So that's twice this week that we're seeing Getty Images act not just like a typical copyright troll, but one that is so drunk with shakedown power that it's not even bothering to understand just what the fuck it's doing. But, of course, the company can get away with this kind of stuff because (1) there's no punishment for abusing the law in this manner and (2) many sites will probably just pay up rather than deal with the legal threats. It's legalized extortion, and Getty is profiting from it at the expense of actual creators. In yesterday's post, Getty gave some bullshit answer about protecting the rights of the artist. What's its excuse going to be this time?

Filed Under: 2600, copyright, copyright troll, shakedown
Companies: 2600, getty images, trunk archive

Getty Images Goes Copyright Trolling After A Meme Penguin

from the talk-about-socially-awkard dept

Getty Images has a bit of a reputation for being a ridiculous copyright troll at times -- sending out threatening letters demanding large sums to "settle" for people who use an image from Getty's database. But, now, it appears to have taken the trolling to a new level, as the German blog GetDigital.de revealed last week when it reported that Getty had demanded nearly $1,000 for one year's use of an image of a penguin that is actually part of a semi-popular meme, better known as the Socially Awkward Penguin.

If you're unaware, the Socially Awkward Penguin usually looks something like this: Or, more specifically, it looks like that with words above and below it detailing a socially awkward situation. For example: Okay, maybe not the greatest meme, but, you know, it's an internet meme.

The issue is that the penguin itself was sort of plucked from a photograph taken by George Mobley for National Geographic, seen here in thumbnail form: Getty holds the rights on the image, and apparently has decided to go trolling on it. GetDigital actually agreed to pay up and remove the image... but was also told that it couldn't tell anyone about this, and apparently decided to give a giant middle finger to Getty by posting all about it -- leading to fairly widespread press attention about the fact that Getty is apparently so desperate in its copyright trolling that it's now going after memes.

In response, GetDigital has now released an alternative version of the Socially Awkward Penguin based on a penguin that Getty can't troll over: It's even been added to Meme Generator in case you'd like to make your own.

Of course, this whole thing is particularly stupid and makes Getty look absolutely ridiculous (once again). Chances are there would be a strong fair use defense in the US, but the shakedown above is happening in Germany, which doesn't have a similarly codified fair use concept. But, even so, it just makes Getty look desperate. Even worse, when approached by the Daily Dot about this, rather than admit it had fucked up, Getty Images doubled down:

“We believe in protecting copyright and the livelihoods of photographers and other artists who rely on licensing to earn a living and fund the creation of new works,” a Getty spokesperson wrote. “Getty Images has an immense responsibility to the 200,000+ artists we work with to ensure that their work is properly licensed when used by commercial entities. Bear in mind that many artists themselves are small businesses, and are entitled to be paid for their work.”

Getty added that it “understand[s] that people love our imagery and want to share it in a personal capacity with their online audiences.” But to do so without triggering a copyright claim, Getty recommends that Internet users take advantage of the company’s image-embed tool, which the company launched last year.

Nearly the entire statement is bullshit. Getty has no "responsibility" (immense or otherwise) to shakedown blogs using a semi-popular meme. Doing so is not about protecting copyright or protecting the livelihood of photographers. It's just shaking down a blog. No one is using this meme because of the photograph itself, and as can be seen by the alternative version, there's nothing special about this penguin that makes it especially necessary for this meme. It's just a crazy meme that got popular on the internet, not because of Getty and not because of George Mobley.

As for the whole thing about Getty's image-embed tool, we wrote about that last year when it came out -- and we were happy that Getty appeared to be embracing the internet, rather than just copyright trolling, but this response is pure bullshit, because the socially awkward penguin image is not available via Getty, because that image is not the meme. So that response makes absolutely no sense at all.

Meanwhile, the Socially Awkward Penguin meme itself had more or less become obscure after going through its rise and fall in popularity. However, this shakedown by Getty appears to be leading to a resurgence of the meme. Perhaps that's really what Getty wanted all along.

Filed Under: copyright troll, copyright trolling, george mobley, memes, shakedown, socially awkward penguin
Companies: getty, getty images

Official Portrait For Pope's US Visit... Being Investigated For Copyright Infringement

from the the-holy-copyright-infringement dept

The previous pope, Benedict XVI a few years ago made some waves by suggesting that intellectual property had gone too far, saying:

On the part of rich countries there is excessive zeal for protecting knowledge through an unduly rigid assertion of the right to intellectual property...

The current Pope may now be at the center of a copyright dispute as well. Apparently, Pope Francis is heading to the US in a few weeks. And, as a part of this, apparently someone asked Philadelphia pop artist Perry Milou to create an "official" portrait of the Pope for his tour. And he did: As a story at Buzzfeed notes, that portrait is on nearly everything related to the Pope's official visit to Philadelphia. It's on the website of the group organizing the visit: And it's being sold on all sorts of merchandise: You can even buy the original painting, if you have $1 million to spare: There's... uh... just one problem. Getty Images claims that the portrait is based on a photo that it holds the rights to, taken by Italian photographer Franco Origlia. You can see that photo here: And the two images side by side: And, yup, it seems pretty clear that Milou found that image and made his painting based on that.

And most normal people would agree that this should be perfectly fine. Creating the painting is absolutely transformative. It doesn't take away from the rights of the original photograph and certainly is not a replacement for the original photograph and might even make the original photograph more recognizable and more in demand.

But, we live in the real world where copyright extremists freak out about just about anything. And Getty, for one, has a reputation as quite the copyright troll.

And, tragically, Getty is probably remembering what happened the last time a well known "pop artist" created a big recognizable portrait of someone based on a photograph held by a news agency: the infamous Sheppard Fairey/Obama Hope poster, that was based on a photo by photographer Manny Garcia, but where the Associated Press held the copyright: In that case, even though many believe that Fairey had a really strong fair use claim, Fairey himself fucked it up by destroying evidence and lying, pretending that he had used a different photograph as the base. This was a really bad decision, because it poisoned the waters for a nice fair use defense, and got Fairey in deeper hot water. And, eventually that case was just settled.

One hopes that, should Getty go legal, that Milou doesn't follow Fairey's lead, and actually mounts a strong fair use defense. One would think that, at the very least, he'd have the Pope on his side, and that can't hurt.

Of course, given the ridiculous freakouts about these people daring to paint portraits based on news photographs, we're still wondering why no one ever threatened to sue former President George W. Bush for his paintings of famous world leaders that were also based on Google Image search results. Remember this masterpiece by the former President painting Russian leader Vladimir Putin based on the first result in Google Images at the time? Somehow, no one decided to sue President Bush...

Filed Under: copyright, fair use, perry milou, pope, pope francis, portrait, shepard fairey
Companies: getty, getty images