# Photographer sues Getty for One Billion Dollars for Copyright Infringement



## tirediron

I hope she wins that and more!  Link


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## limr

tirediron said:


> I hope she wins that and more!  Link



Totally agree.


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## unpopular

This is a tremendously complicated case, and it's really hard to establish injury here. Getty could claim that the fees associated are for stock services for which these images are a part of, and because they are in the public domain the rights aren't included. This would only apply if we're talking about non-exclusive and royalty free. Because in this case the rights of the images aren't being transferred, there is no infringement. Public domain isn't like Creative Commons. And as seady as it would be, as far as I know it'd be completely legal for me to sell collections of public domain images, and in some cases without even crediting the artist.

If Getty is offering exclusive rights, that would be more of a fraud issue, I'd think.


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## unpopular

(all that said, what Getty is doing here is definitely dishonest. I'm just not sure it's illegal)


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## DarkShadow

Scum Bags, Hope she wins every cent.


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## tirediron

unpopular said:


> (all that said, what Getty is doing here is definitely dishonest. I'm just not sure it's illegal)


Sad, but true!


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## unpopular

DarkShadow said:


> Scum Bags, Hope she wins every cent.



Even if there was a case here, I doubt that the court would assign even a significant fraction. Even the statutory damages would probably be negotiated. 

The minimum statutory damages for willful infringement is $200 per infraction, and if found not willful no more than $30,000 for the entire body (if I am understanding 17 U.S. Code § 504 - Remedies for infringement: Damages and profits correctly)


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## tirediron

unpopular said:


> DarkShadow said:
> 
> 
> 
> Scum Bags, Hope she wins every cent.
> 
> 
> 
> 
> Even if there was a case here, I doubt that the court would assign even a significant fraction. Even the statutory damages would probably be negotiated.
> 
> The minimum statutory damages for willful infringement is $200 per infraction, and if found not willful no more than $30,000 for the entire body (if I am understanding 17 U.S. Code § 504 - Remedies for infringement: Damages and profits correctly)
Click to expand...

Based on the fact that she's asked for one billion dollars, I don't for a second think she is actually after monetary damages because the fact is (I don't like it, but it's a fact), since she gavet hem over to the public domain, she's not out anything...  I'm sure her intent here is to draw public attention to what a group of scumbags Getty is!


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## Gary A.

unpopular said:


> This is a tremendously complicated case, and it's really hard to establish injury here. Getty could claim that the fees associated are for stock services for which these images are a part of, and because they are in the public domain the rights aren't included. This would only apply if we're talking about non-exclusive and royalty free. Because in this case the rights of the images aren't being transferred, there is no infringement. Public domain isn't like Creative Commons. And as seady as it would be, as far as I know it'd be completely legal for me to sell collections of public domain images, and in some cases without even crediting the artist.
> 
> If Getty is offering exclusive rights, that would be more of a fraud issue, I'd think.


I read it quite differently, albeit there is a lack of information to factually determine what the 'licensing' that Getty is selling includes/stipulates. I am not am attorney, but I suspect that the usage of an image in the public domain does not include the selling/licensing of said image by a commercial enterprise without the consent of the photographer and/or the entity which received the photographs. The scope of Getty 'stealing' and licensing 18,755 Highsmith images from the Library of Congress and the fact that this is not the first offense of Getty copyright infringement ... per the numbers posted by Highsmith's lawsuit, the $1,000,000,000 seems reasonable.

Again, there are two sides to every coin and we haven't heard from Getty. Should Highsmith prevail, I hope that a complete audit of Getty's licensing activities is ordered.


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## unpopular

@Gary A. I really just don't know, and there is definitely a lack of information.

But let's think of it this way. Say I have a customer who needs a specific image for an advertisement. It's pretty common practice to look for images in the public domain for this, and often public domain images do not require citation to use. I check the citation requirements for the image, and confirm this is the case.

So, I incorporate the image into the advert and transfer the license to the client.

How is this any different?

Now, a few caveats: The portion of public property I used in the advert is not technically exclusively "owned" by the client nor by me - it remains in the public domain. So anyone can come along and copypaste out the public imageWhat I am selling isn't that image, but rather the use of that image within a design composition.

Getty may not be actually selling the image, either. They might "license" the image, but if the agreement can be summed up to "enter credit card/download image but rather the stock service product - the search and delivery of the image. Where Getty might get in trouble is giving the impression to customers that the property is exclusive or not within the public domain, and as a result clients might rightfully feel that they were mislead about the product's value.

Also, the license is an agreement between Getty and the Customer, so I don't think it'd even involve the photographer. The license itself doesn't really determine copyright infringement, the copying does. Property transfers might be a little different, but again, if someone sells me stolen property it's not the sale that makes it stolen. For the photography, it's the property theft that's the issue. For the customer it's the lack of disclosure about the product. But these are, afaik, totally unique issues.

But, if the photographer transferred the images into the public domain I don't think she has any claim to them - she owns them, but so do I - and so does Getty. And what Getty does with those images might be outside of her control.

But IDK. I too am not an attorney. It's a really, really complicated case.


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## unpopular

Another analogy would be those stupid "background check" websites that sell public records.

Emotionally it's different. I'm not sure if it is legally or not.


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## EIngerson

unpopular said:


> This is a tremendously complicated case, and it's really hard to establish injury here. Getty could claim that the fees associated are for stock services for which these images are a part of, and because they are in the public domain the rights aren't included. This would only apply if we're talking about non-exclusive and royalty free. Because in this case the rights of the images aren't being transferred, there is no infringement. Public domain isn't like Creative Commons. And as seady as it would be, as far as I know it'd be completely legal for me to sell collections of public domain images, and in some cases without even crediting the artist.
> 
> If Getty is offering exclusive rights, that would be more of a fraud issue, I'd think.




This post is SOOOOO unpopular.....


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## Gary A.

unpopular said:


> @Gary A. I really just don't know, and there is definitely a lack of information.
> 
> But let's think of it this way. Say I have a customer who needs a specific image for an advertisement. It's pretty common practice to look for images in the public domain for this, and often public domain images do not require citation to use. I check the citation requirements for the image, and confirm this is the case.
> 
> So, I incorporate the image into the advert and transfer the license to the client.
> 
> How is this any different?
> 
> Now, a few caveats: The portion of public property I used in the advert is not technically exclusively "owned" by the client nor by me - it remains in the public domain. So anyone can come along and copypaste out the public imageWhat I am selling isn't that image, but rather the use of that image within a design composition.
> 
> Getty may not be actually selling the image, either. They might "license" the image, but if the agreement can be summed up to "enter credit card/download image but rather the stock service product - the search and delivery of the image. Where Getty might get in trouble is giving the impression to customers that the property is exclusive or not within the public domain, and as a result clients might rightfully feel that they were mislead about the product's value.
> 
> Also, the license is an agreement between Getty and the Customer, so I don't think it'd even involve the photographer. The license itself doesn't really determine copyright infringement, the copying does. Property transfers might be a little different, but again, if someone sells me stolen property it's not the sale that makes it stolen. For the photography, it's the property theft that's the issue. For the customer it's the lack of disclosure about the product. But these are, afaik, totally unique issues.
> 
> But, if the photographer transferred the images into the public domain I don't think she has any claim to them - she owns them, but so do I - and so does Getty. And what Getty does with those images might be outside of her control.
> 
> But IDK. I too am not an attorney. It's a really, really complicated case.



I think that the 'value added' that you created by incorporating the image into a greater entity is different than simply demanding a fee for something which Getty did not add any additional value. Again, I am not an attorney, but ... If you make a coffee cup and incorporate a public image on that cup, I think that is okay because your selling a cup and not just the image. I think Getty knows that their practices will be crossing a copyright line, a legal line, an ethical line and didn't give a rat's thinking that all their attorneys will crush or negotiate a way out of the lines they have crossed and still have a lot of profits left over at the end of the day. Corporations call that risk management.  This will be difficult to prove, but if Highsmith's attorney's can discover the smoking gun attesting to Getty acting with malice ... Then the $1B is a very realistic goal. If Highsmith has the wherewithal or the connections to bring a legal team that can match the Getty lawyers ... Then Getty has one hell of a fight on its hands ... Losing will cost the Getty plenty in actual damages and in jobs.


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## Designer

unpopular said:


> (all that said, what Getty is doing here is definitely dishonest. I'm just not sure it's illegal)


There's like two levels of law, eh.  There's the really bad stuff, ya?  And then there's the stuff that people can sue other people for.


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## 480sparky

The only opinion that will count in the end is that of the judge.


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## jcdeboever

I'm working hard at getting my images stolen.


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## limr

unpopular said:


> But let's think of it this way. Say I have a customer who needs a specific image for an advertisement. It's pretty common practice to look for images in the public domain for this, and often public domain images do not require citation to use. I check the citation requirements for the image, and confirm this is the case.
> 
> So, I incorporate the image into the advert and transfer the license to the client.
> 
> How is this any different?



Think of it this way: Your client is paying you for your work on the advert, not for the image or a license for the image. You shouldn't be paying for the image, either. But then Getty comes after you or your client - or both - and demands that you pay them for using the image that is actually in the public domain. 

There were people - including the photographer herself - who were using images that they should NOT be paying for and yet Getty was still demanding payment for "copyright infringement." They also slapped on watermarks on her images to give the impression that Getty owned them. And that is clearly fraudulently presenting Getty as the sole copyright owner.



> But, if the photographer transferred the images into the public domain I don't think she has any claim to them - she owns them, but so do I - and so does Getty. And what Getty does with those images might be outside of her control.
> 
> But IDK. I too am not an attorney. It's a really, really complicated case.



Her lawsuit claims that Getty's profits would have been hers had she not donated them, and that her donation does not give the agency - or anyone else - the right to profit from them _as a copyright owner_. Sure, people can profit from work that includes her public domain images (such as your theoretical advert work for a client that includes her image), but they can't claim copyright ownership and claim infringement damages as Getty has been doing.

As for the amount, you're looking at 17 U.S. Code 504 (c) (1)?

"Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, *with respect to any one work*, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work."

So $30,000 for EACH work, but she's claiming that Getty infringed on 18,755 works. And they're actually using the sum of $25,000, not $30,000. So (25 x 18,755) x 3 (trebled because of prior infringement.) This the billion in statutory damages.

My guess is that she is asking for the maximum to make a statement, that the lawsuit is really much more of a symbolic flipping of the bird at Getty than it is about the actual money. The judge can reduce the actual damages awarded if deemed necessary. And my suspicion is that if she wins, she'll be donating the money.

The transfer of ownership (including donations into public domain) I believe would be explained under Chapter 2, but I have to go get a haircut now so I'll read it more carefully later


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## annamaria

I hope she wins!


Sent from my iPad using Tapatalk


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## Gary A.

Designer said:


> unpopular said:
> 
> 
> 
> (all that said, what Getty is doing here is definitely dishonest. I'm just not sure it's illegal)
> 
> 
> 
> There's like two levels of law, eh.  There's the really bad stuff, ya?  And then there's the stuff that people can sue other people for.
Click to expand...

Yes there are ... Criminal and Civil ... But I suspect that potentially this is the tip of the iceberg of a class action. What Getty has done to Highsmith, they most likely have also done with other photogs and other images.


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## unpopular

limr said:


> Think of it this way: Your client is paying you for your work on the advert, not for the image or a license for the image. You shouldn't be paying for the image, either. But then Getty comes after you or your client - or both - and demands that you pay them for using the image that is actually in the public domain.



I am NOT saying what they were doing was honest. It wasn't. That needs to be absolutely clear.

The question is if it is illegal.



> There were people - including the photographer herself - who were using images that they should NOT be paying for and yet Getty was still demanding payment for "copyright infringement."



So then Getty is demanding payment from people who are currently using images in the public domain and obtained from other sources than Getty?



> They also slapped on watermarks on her images to give the impression that Getty owned them. And that is clearly fraudulently presenting Getty as the sole copyright owner.



There is certainly that impression, but again that more misleads the customer. The other issue is of who is the copyright owner - I can't sue for images that were stolen from you, if I took an image in teh public domain and claimed that I "owned it" you can't sue me; maybe teh government could as a collective representation of the The People, but you can't. So why should the photographer make a claim that, according to law, are owned by the public?

Then there's the issue of if they're copyright at all. And I'm super unsure about that. I'm not sure if images in the "public domain" aren't copyright, or if the copyright is owned by the public - or even if it much matters.



> Her lawsuit claims that Getty's profits would have been hers had she not donated them, and that her donation does not give the agency - or anyone else - the right to profit from them _as a copyright owner_.



But *is she* a copyright owner? I don't think there is such a thing as "partial ownership of public domain property". This seems kind of weird to me.



> Sure, people can profit from work that includes her public domain images (such as your theoretical advert work for a client that includes her image), but they can't claim copyright ownership and claim infringement damages as Getty has been doing.



And that's what is unclear. Has Getty claimed the copyright or implied the copyright? If they stuck a big copyright notice under it that says "Copyright 2016, Getty Images", then that's pretty explicit. Simply placing your watermark on it is more implied, and could be argued that it was placed there to prevent people from downloading it from their aggregate without paying for the service - not the image itself.

I mean, yeah. We all _know _what Getty was actually doing. But that's beside the point.



> So $30,000 for EACH work, but she's claiming that Getty infringed on 18,755 works. And they're actually using the sum of $25,000, not $30,000. So (25 x 18,755) x 3 (trebled because of prior infringement.) This the billion in statutory damages.



Yes. I misread that. But no. they would never award this, past infringement or not.



> The transfer of ownership (including donations into public domain) I believe would be explained under Chapter 2, but I have to go get a haircut now so I'll read it more carefully later



Yep. there are two parts to this. The damages and the fair use.


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## unpopular

Gary A. said:


> I think that the 'value added' that you created by incorporating the image into a greater entity is different than simply demanding a fee for something which Getty did not add any additional value.



That's kind of a test for appropriations, and if it were to come up then Getty would claim that the added value is that it was included in their search results along side hundreds of other options.


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## limr

unpopular said:


> So then Getty is demanding payment from people who are currently using images in the public domain and obtained from other sources than Getty?



Yup. Remember that she became aware of it when they sent HER a letter accusing her of copyright infringement for displaying her OWN photo on her OWN website. Presumably, she had her own copy and didn't need to get it from Getty  If they are demanding damages for copyright infringement, that clearly implies that they are claiming to be the copyright holders.



> There is certainly that impression, but again that more misleads the customer. The other issue is of who is the copyright owner - I can't sue for images that were stolen from you, if I took an image in teh public domain and claimed that I "owned it" you can't sue me; maybe teh government could as a collective representation of the The People, but you can't. So why should the photographer make a claim that, according to law, are owned by the public?
> 
> Then there's the issue of if they're copyright at all. And I'm super unsure about that. I'm not sure if images in the "public domain" aren't copyright, or if the copyright is owned by the public - or even if it much matters.
> ...
> But *is she* a copyright owner? I don't think there is such a thing as "partial ownership of public domain property". This seems kind of weird to me.



According to this other article (Photographer Suing Getty Images for $1 Billion) about the lawsuit, Highsmith donated the images with no restrictions on usage but never gave up her copyright.

"The photographer’s photos are listed on the library’s website as being in the public domain with “no known restrictions on publication.”

However, Highsmith says she never abandoned her photo copyrights, and says she found out about Getty Images charging for her photos when she was sent a letter from Getty that demanded she pay for her own photo that was being displayed on her own website."

There's also a copy of the official complaint, which should cite the sections of Title 17 that they are suing under and will give the facts they are stipulating.


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## pixmedic




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## limr

Ah, and here's a bit more of the missing information on yet another site: Photographer suing Getty Images for $1 billion after $120 demand on photo sparks copyright dispute

_"Highsmith says she never abandoned her copyrights to the images, PDN reports, and that the Library of Congress “had agreed to notify users of the images that she is the author, and that users must credit her.” But her suit alleges that Getty distributed her images without her permission and failed to give her proper credit."_

The wording of the letter she got does seem to at least strongly imply that they are claiming copyright ownership:

_"Torrent Freak reports that in December, the This is America! Foundation, a non-profit set up by Highsmith, received a letter from License Compliance Services (LCS) on behalf of Getty-affiliated Alamy:
_
_'We have seen that an image or image(s) represented by Alamy has been used for online use by your company. According to Alamy’s records your company doesn’t have a valid license for use of the image(s). Although this infringement might have been unintentional, use of an image without a valid license is considered copyright infringement in violation of the Copyright Act, Title 17, United States Code. This copyright law entitles Alamy to seek compensation for any license infringement.'"_​


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## limr

Ooooh, interesting! Note on the complaint provided on the PetaPixel site that a jury trial is demanded. Not sure how binding that is, but it's interesting for sure. She doesn't want it left solely in the hands of a judge.


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## unpopular

limr. excellent work looking into this!


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## limr

unpopular said:


> limr. excellent work looking into this!



I do loooove me some research! Plus, and I hate to brag, but I DID get an A in my "Intellectual Property Law for Paralegals" course


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## astroNikon

jcdeboever said:


> I'm working hard at getting my images stolen.


I have a copy of your images.
Do you want to buy them from me as no one else is interested ?
LOL


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## astroNikon

unpopular said:


> I am NOT saying what they were doing was honest. It wasn't. That needs to be absolutely clear.
> 
> The question is if it is illegal.


It seems as though they have been sued (and lost) from doing this in the past.
So there's precedence on findings and awards.


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## unpopular

limr said:


> unpopular said:
> 
> 
> 
> limr. excellent work looking into this!
> 
> 
> 
> 
> I do loooove me some research! Plus, and I hate to brag, but I DID get an A in my "Intellectual Property Law for Paralegals" course
Click to expand...


LOL - my wife actually has a degree in paralegal studies. But refuses to help with any IP research because it's so complicated. Plus she doesn't have a current password for West or Lexisnexus.


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## limr

unpopular said:


> limr said:
> 
> 
> 
> 
> 
> unpopular said:
> 
> 
> 
> limr. excellent work looking into this!
> 
> 
> 
> 
> I do loooove me some research! Plus, and I hate to brag, but I DID get an A in my "Intellectual Property Law for Paralegals" course
> 
> Click to expand...
> 
> 
> LOL - my wife actually has a degree in paralegal studies. But refuses to help with any IP research because it's so complicated. Plus she doesn't have a current password for West or Lexisnexus.
Click to expand...


Oh, it's a total cluster**** and almost as bad as the tax code. And that's even without the complication of state vs federal law. At least IP is federal only and consistent throughout the country. I enjoyed it but what turned me off is the heavy interaction with contract law. Contracts was my least favorite class of my certificate program. CrimLaw was my favorite.

Yeah, I really miss access to WestLaw!


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## jcdeboever

astroNikon said:


> jcdeboever said:
> 
> 
> 
> I'm working hard at getting my images stolen.
> 
> 
> 
> I have a copy of your images.
> Do you want to buy them from me as no one else is interested ?
> LOL
Click to expand...

Ummm, you do remember I have 150lbs on you.... don't make me come down to the burbs and slap you....[emoji12]


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## unpopular

limr said:


> unpopular said:
> 
> 
> 
> 
> 
> limr said:
> 
> 
> 
> 
> 
> unpopular said:
> 
> 
> 
> limr. excellent work looking into this!
> 
> 
> 
> 
> I do loooove me some research! Plus, and I hate to brag, but I DID get an A in my "Intellectual Property Law for Paralegals" course
> 
> Click to expand...
> 
> 
> LOL - my wife actually has a degree in paralegal studies. But refuses to help with any IP research because it's so complicated. Plus she doesn't have a current password for West or Lexisnexus.
> 
> Click to expand...
> 
> 
> Oh, it's a total cluster**** and almost as bad as the tax code. And that's even without the complication of state vs federal law. At least IP is federal only and consistent throughout the country. I enjoyed it but what turned me off is the heavy interaction with contract law. Contracts was my least favorite class of my certificate program. CrimLaw was my favorite.
> 
> Yeah, I really miss access to WestLaw!
Click to expand...


Laura liked litigation and family law in particular. She was didn't mind contract law, but her program was a two year associates degree. I cannot really imagine doing Paralegal in an accelerated format. There's a lot that gets covered.


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## KmH

To clear some things up ...... (all quotes per the public record law suit:  Case 1:16-cv-05924-JSR https)
www.scribd.com/document/319553374/Gov-Uscourts-Nysd-460787-1-0#download

Highsmith is seeking judgement based on the portion of US copyright law known as the *Digital Millennium Copyright Act* (DMCA) - 17 U.S.C. §§1202(a), 1202(b) and 1203 - _False Assertion of Copyright_.
Highsmith is seeking relief from Getty Images because she claims Getty Images  is ". . . 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. . . "
Highsmith is not claiming copyright infringement.

The DMCA's maximum award is $25,000, which is where the $25,000 per image comes from. The DMCA's _minimum_ award is $2500 per image, not the $200 minimum available for copyright infringement.
". . . Defendants’ violations of 17 U.S.C. § 1202 entitle Ms. Highsmith to recover, among other things, and if she so elects as provided in 17 U.S.C. § 1203(c)(3)(B), 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. . . ”

Highsmith is not only suing Getty Images, she is also suing PicScout, License Compliance Services (Carlyle Group owns PicScout, Getty Images, & LCS), Alamy, and 1 to 100 "John Does" . . . unidentified parties acting in active concert or participation with the named Defendants. . . "


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## Gary A.

limr said:


> Ooooh, interesting! Note on the complaint provided on the PetaPixel site that a jury trial is demanded. Not sure how binding that is, but it's interesting for sure. She doesn't want it left solely in the hands of a judge.


That is very interesting, because usually/often one is better off with a judge with complex/specialty law issues.  When I went to trial on 'press' issues, my attorneys highly recommended a judge over a jury becuase a jury would have a hard time understanding press privileges.


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## KmH

Here is an interesting item:
"PLAINTIFF’S ORIGINAL COMPLAINT PAGE 17 OF 38
85.
Additionally, the letter that Ms. Highsmith received on December 14, 2015, (my emphasis) *was sent before* License Compliance Services, Inc. was organized under the laws of the State of Washington, which occurred in March 2016."

Gov-Uscourts-Nysd-460787-1-0


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## Gary A.

KmH said:


> To clear some things up ...... (all quotes per the public record law suit:  Case 1:16-cv-05924-JSR https)
> www.scribd.com/document/319553374/Gov-Uscourts-Nysd-460787-1-0#download
> 
> Highsmith is seeking judgement based on the portion of US copyright law known as the *Digital Millennium Copyright Act* (DMCA) - 17 U.S.C. §§1202(a), 1202(b) and 1203 - _False Assertion of Copyright_.
> Highsmith is seeking relief from Getty Images because she claims Getty Images  is ". . . 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. . . "
> Highsmith is not claiming copyright infringement.
> 
> The DMCA's maximum award is $25,000, which is where the $25,000 per image comes from. The DMCA's _minimum_ award is $2500 per image, not the $200 minimum available for copyright infringement.
> ". . . Defendants’ violations of 17 U.S.C. § 1202 entitle Ms. Highsmith to recover, among other things, and if she so elects as provided in 17 U.S.C. § 1203(c)(3)(B), 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. . . ”
> 
> Highsmith is not only suing Getty Images, she is also suing PicScout, License Compliance Services (Carlyle Group owns PicScout, Getty Images, & LCS), Alamy, and 1 to 100 "John Does" . . . unidentified parties acting in active concert or participation with the named Defendants. . . "


Good for her! (Thank you Keith for the additional clarifications.)


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## astroNikon

Sounds like Getty started a "collections agency" branch of the company to try and stiffarm people to give them money based on perceived copyrights, etc. for an additional revenue stream.
Maybe they should also research who they send those letter to first.
Sounds like fun.


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## Solarflare

Maybe they should first research if they are actually the copyright holders in the first place.


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