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$1 Billion Lawsuit Against Getty Images Raises Questions about Public Domain Dedication

Posted by Rebecca Blake on September 29, 2016

Photographer Carol Highsmith was outraged when she received a $120 invoice from Licensing Compliance Services on behalf of Almay Limited, a photo stock agency. The invoice was accompanied with a threat letter contending that she was using one of their licensed images on her website. Why the outrage? Highsmith had taken the photograph Almay was claiming to license. Not only that, Highsmith had donated that photo to the Library of Congress for public use, rights-free. A little bit of digging revealed that Almay Limited and photo stock giant Getty Images were selling Highsmith’s public domain images, and were aggressively pursuing anyone found to be using those images via the content tracking service PicScout (a Getty subsidiary).

Highsmith is a well-regarded photographer who documents the cities, countryside, and cultures of the United States. Her work has have been widely acclaimed and published. Inspired by iconic American photographers such as Dorothea Lange and Frances Benjamin Johnson, Highsmith began donating her photographs to the Library of Congress in 1988. The Library established a one-person archive of her work, to which Highsmith continues to contribute; the collection is expected to top out at over 100,000 images. An article on PDNPulse states that in making her images public domain, “Highsmith says she never abandoned her copyrights to the images. She says the Library of Congress had agreed to notify users of the images that she is the author, and that users must credit her.” (“Photog Seeks $1 Billion from Getty for Copyright Violations,” David Walker, Sept. 9, PDN Pulse) Her intention was to make the photographs available rights-free “for the use and benefit of the American people, and as a permanent record of our nation’s buildings, landscape, culture, and people.” Discovering that her donated work was monetized by stock image agencies was a surprise.

Hightsmith contacted Licensing Compliance Services, who quickly dropped the invoice. But Highsmith wasn’t satisfied. Searches pulled up 18,755 of her donated images on Getty Images, and about 500 on Alamay. Both Getty and Alamay were inconsistent in how the photo was credited. Alamay made no reference to Highsmith, but labeled her photos “© Everett Collection Inc / Alamy Stock Photo.” Getty labeled some images “By: Buyenlarge”, and others “Credit: Buyenlarge/Contributor”, followed by “Photo by Carol Highsmith/Buyenlarge/Getty Images.” (Buyenlarge is the profile of a contributor on the Getty website. It’s also the name of a print-on-demand poster printer specializing in public domain and licensed historic ephemera; some of those images also appear on Getty under Buyenlarge's credit line.) Highsmith also discovered that Getty and Alamay continued to seek out and invoice users of Highsmith’s images, even after they were made aware that users may have sourced the images from the Library’s Highsmith collection.

The sheer volume of the images posted to Getty Images and Alamay led Highsmith and her legal team to seek damages of $1 billion from Getty, Alamay, Licensing Compliance Services, and PicScout. Highsmith is contending that when Getty and Alamay removed or altered the credit line from the photos – the Highsmith/Library of Congress credit she had stipulated upon donating her photos – the defendants violated DMCA provisions of US copyright law which proscribe the altering or elimination of copyright management information (CMI) with the intent to enable or conceal copyright infringement. The lawsuit also contends that the defendants are falsely presenting themselves as the copyright holders (or their agents), and threatened lawsuits they couldn’t pursue against people who lawfully used Highsmith's public domain images. (Highsmith is not claiming copyright infringement in her suit.)

While that figure sounds hyperbolic, it’s based on what the legal team thinks they could be awarded. As outlined in her lawsuit, each instance of infringement could be seen as a separate violation of Section 1202 of US Copyright law, and could result in a award of between $2,500 and $25,000. Multiply that by 18,755 infringements, and the total comes to between $46,887,500 and $468,875,000. Since Getty was already found to have infringed a photographer’s work in the past three years, the Court could additionally treble the damages awarded to Highsmith – hence the $1 billion price tag. (Highsmith also contends that Getty’s licensing of her work damaged her reputation by making her appear to have been hypocritical in first donating her work to the Library, and later deciding to license the work to Getty.)

Carol Highsmith, photographer, Nelson Atkins Art Museum, Kansas City, Missouri

Carol Highsmith was invoiced for her photo of the Nelson Atkins Art Museum in Kansas City, MO.

Credit: Carol M. Highsmith's America, Library of Congress, Prints and Photographs Division

Getty responded to the lawsuit with a statement claiming that the complaint was based on misconceptions, and filed a motion to dismiss the case. In their motion, they refute that they altered the CMI. Getty's motion also states they could not have altered the CMI with the intent to infringe copyrights, since no copyrights exist to infringe on public domain images. It’s not certain that Highsmith will prevail, should the case go to trial. Stock agencies legally license public domain images, and justify the fees by citing the resources they invest to make the images available for “productive use.” In her article, “Can Anyone Use Public Domain Images?”,  Nancy Wolf, legal counsel to DMLA, explains that legally anyone can make use of public domain images, including licensing them. But most images enter the public domain when their copyright expires, if their copyright wasn’t renewed, or if the work didn’t have a valid copyright notice.

But what about images that were dedicated to the public domain? Can the creator make that dedication conditional, as did Highsmith claims she did with her requirement of a credit line? And does the creator retain any copyrights? The IP blog Public Domain Sherpa asked the Copyright Office whether an author could abandon his or her copyright to a work. The Office responded that there is no specific provision in copyright law for disclaiming copyrights, and that while an author can record their intention with the Office, the acceptance of a statement of abandonment of copyrights  “…should not be construed as approval of the legal sufficiency of its content or its effect on the status or ownership of any copyright.” In her agreement with the Library, Highsmith stated that she dedicated to the public “all rights, including copyrights throughout the world, that I possess in this collection.” However, the agreement also states that the Library will request that those reproducing the work include the credit line, “Carol M. Highsmith's America, Library of Congress.”

There’s a good chance Getty and the other defendants will settle out of court with Highsmith. Even if they stand a good chance of winning the suit, the negative pulicity generated by the lawsuit may make a court battle not worth the effort. Getty and Alamay have removed all of the Highsmith images from their websites. But what about those who used Highsmith’s images legally from the Library of Congress website, but were invoiced by Alamay or Getty (and paid the bill in some confusion)? Jonathan Bailey on Plagiarism Today wonders if a class action lawsuit brought by those erroneously billed by the stock agencies will be brought.

The Power of the © Notice

Posted by Rebecca Blake on September 15, 2016

Leslie Burns copyright noticeIn June, we reported on attorney Leslie Burns’ article on CMI: copyright management information. Burns advised visual artists to put a visible copyright notice on  work they post online, since doing so provides the artists with additional tools to bring to bear, should the work be infringed. In her follow-up article, “Your © is More Than CMI,” Burns goes into greater detail on how to effectively use the copyright notice, and why doing so is such a good practice.

First, Burns explains that the copyright notice must include the copyright symbol, the date of publication, and the copyright owner’s name. (For those confused on what the date of publication is, she goes into a bit of detail.) She then explains that if an infringer uses a work that had a copyright notice removed, the infringer can’t claim “innocent infringement” – even if the infringer got the artwork from another source, and had no idea that a copyright notice had been removed. Burns cites two copyright cases that support this rule: BMG Music v. Gonzalez and Maverick Recording v. Harper
Infringers who have used works from which the copyright notice of watermark was removed have violated §1202 of the DMCA (Digital Millenium Copyright Act). Burns calculates that the infringer could be looking at a minimum of $3,250 in damages ($750 for the infringement, and $2,500 for the DMCA violation), and possibly attorney’s fees.

Of course, none of this will apply if the visual artist hasn’t first registered his or her work with the copyright office. Remember, if a work isn’t registered, an artist can sue for copyright infringement, but won’t be awarded damages or attorney’s fees. WIth a background in business and marketing management for a photography studio and a design firm, Burns is huge advocate for visual artists. Her website, Burns the Attorney, features a steady stream of articles on legal issues creative types need to be on top of.

Workgroups Present to the International Design Community at ico-D Platform Meetings

Posted by Rebecca Blake on September 09, 2016

ico-D, the International Council of Design, represents the interests of design associations, educational institutions, and promotional organizations globally, and the Guild has been a member since 2007. The ico-D Platform Meetings were held late August in Pasadena, CA, providing an opportunity for members to meet and discuss the work of the organization’s professional and educational workgroups. As head of the workgroup on National Design Policy, the platform meeting was both an opportunity for us to connect with international designers, and the culmination of a lot of hard work.

The ico-D “platforms” were established to provide an opportunity for members to work on projects in between the organization’s annual member meetings. Platforms were established for each of the categories of ico-D members: Educational, Professional, and Promotional. At the first Professional Platform meeting (which the Guild is part of), ico-D member associations listed three topics they wanted to focus on: National Design Policy (NDP), Communicating the Value of Design (CVD), and Design Certification (DC). Workgroups were established for each topic last summer, and as the Guild’s representative to ico-D, I was asked to head the NDP group.

During the past year, the workgroup met frequently via Skype, often at odd hours to so that members from Malaysia, Indonesia, Canada, South Korea, the US, and Australia wouldn’t have to miss their sleep to participate. We also conducted interviews with designers involved with the design policies of their home countries or states – a fascinating peek into the varied “design ecosystems,” the relationships between the design sector, businesses, governmental agencies, and the public. (See the article National Design Policies: Why They Matter.)

ico-D Professional Platform Meeting August 2016

Discussion sessions at the platform meetings brought in fresh perspectives from associations representatives and design educators from around the globe.

At the Pasadena Platform Meeting, the NDP workgroup was allotted a half day for presentations. That permitted NDP workgroup members to present on what is occurring in their countries, from an elegant and proactive system (South Korea), to the first steps to crafting an NDP (Malaysia and Indonesia), to attempts at a regional design policy (Australia), and finally, to a failed attempt (USA). At a member Q&A session, attendees spoke about the political and economic conditions in their home states that hinder (or help) the creation of coherent design policies. I also participated in the CVD “Design has Value” session, co-presenting with designer and ico-D friend Zelda Harrison on Communicating the Value of Design to Government.

The workgroup sessions were punctuated by the ico-D annual general meeting, a tour of the Pasadena College of Art and Design, a fascinating panel discussion on Design and Complexity, and a workshop on sustainable design. Based on the quality of the discussions at the meeting and the interest from members in joining the workgroups, the Platform meeting was a success. But what also became apparent is the amount of work still left to develop valuable resources for ico-D members, and to create a space where international design associations can collaboration on crucial projects. 

Below: “Learn to Create. Influence Change.” The College of Art and Design’s motto is displayed prominently in their machine shop.

Pasadena College of Art and Design machine shop

National Design Policies: Why They Matter

Posted by Rebecca Blake on September 06, 2016

For the past year, I've headed a workgroup with ico-D (the International Council of Design) on national design policies. The choice of a Graphic Artists Guild board member to head the workgroup seemed odd; the United States, despite a recent effort, has never had (and probably never will have) a national design policy. So why would a USA-based visual artists’ association care whether national design policies are implemented in other countries?

A national design policy is a systemic and strategic government plan to support its design sector, develop design resources, and utilize those resources to achieve various ends. A design policy can attempt to develop a national brand, increase the global economic competitiveness of a country’s exports, raise design education standards, encourage small and medium-sized businesses to invest in design, leverage design thinking to find sustainable solutions to public sector problems, etc. Countries at different levels of economic development have invested in national design policies – South Korea, India, Finland, and Singapore, among others, have national design policies in place, and policies are currently being developed in Malaysia, Indonesia, Iceland, and Australia.

In the United States, design anthropologist Dori Tunstall attempted to jump-start a national design policy initiative in 2008. A two-day conference of representatives from design associations, educational accreditation bodies, and government agencies resulted in a 10 national design proposals, which were presented to the incoming Obama administration and Congress. Despite a second conference and calls to designers to press their Congressional representatives to support the initiative, no national design policy resulted from the effort.

The reasons are myriad, but tellingly, designers considered the initiative with trepidation. Remarks submitted by designers on the project indicated that many thought a policy would consist of government telling them what to do, a reflection of the US’s culture of public mistrust of a strong central government. (Tunstall doesn’t consider the initiative a failure, since many of the proposals were adopted in part by government agencies, such as NEA’s comprehensive survey of the contribution of the arts, including design, to the US economy. The initiative also deepened ties between agencies and the design sector.)

So, if a national design policy is highly unlikely to ever be adopted in the United States, why should US designers care about national design policies? While design policies do support national designers, making them more competitive internationally, design policies also promote best practices. These include establishing professional design standards, providing resources to educate designers on non-design skills (such as running a business or communicating with clients), and promoting the protection of intellectual property.

The result is a population of designers who are less likely to infringe copyrights or respond to work on speculation projects. Additionally, by promoting best practices, a government discourages ethically questionable business practices, such as design crowdsourcing campaigns. This is particularly important in emerging economies, where the recognition of design as a profession is relatively new, and intellectual property rights are not often generally understood or recognized. The ripple effect of educating a nation’s generation of designers and business owners reaches beyond borders, and benefits all designers (and visual artists, in general). 

Below: The SEE Platform (Sharing Experience Europe) tracked design policies globally from 2012-2015, and published an interactive map showing countries which either adopted a national design policy, or were working a design policy initiative.

SEE platform design policy map

AIGA’s “Get Out the Vote” Poster Campaign 2016 Resonates

Posted by Rebecca Blake on August 29, 2016

In every election year since 2004, AIGA has conducted a "Get Out the Vote" poster campaign. The campaign solicits designs from AIGA members for posters urging citizens to vote. The posters are then made available to the public for free download and printing under a Creative Commons license. None of the submissions reference a political party or candidate, and AIGA’s submission guidelines stipulate that the posters must be non-partisan. In a fraught election year characterized by negative campaign messages, the belief in “the power of design to motivate the American public to register and turn out to vote” is heartening.

The submitted posters cover a wide range of messages, styles, and imagery. Several designers equated non-voters with sheep, while others illustrated American theater critic George Jean Nathan’s quote, "Bad officials are elected by good citizens who do not vote." While the designs adhere to AIGA's non-partisan standard, some recurring themes do reference this year’s election campaigns. A number of the designs mention women's suffrage, or the 96th anniversary of women's right to vote — no doubt inspired by the first woman nominee of a major political party. Other posters play off reports of the increase in Americans Googling "move to Canada" after Trump won the Republican nomination. A number of design luminaries, such as Milton Glaser and Debbie Millman, have contributed their own creations.

The “Get Out the Vote” campaign is conducted by AIGA in partnership with the League of Women Voters. The project falls under AIGA's Design for Democracy initiative, which strives to use design tools to make interactions between government and citizens more transparent and trustworthy. AIGA designers are invited to submit designs through November 8, and a curated exhibit of the posters will be presented during AIGA's annual conference this October. Members of the public are encouraged to download, print, and display the posters.

Below: Poster designs by AIGA members Ozan Karakoc, Ann Willoughby, and Christine Sheller.

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