I'm making a (partial) pass through the amended complaint. I will try to not repeat what was in the first complaint, but instead focus on the additions quickly:
Miscellaneous additions9. Furthermore, the conduct of the Defendants constitutes the public, commercial issuance of false and/or misleading statements of fact that have commercially injured Ms. Highsmith’s sterling professional reputation, and have harmed both her and the Foundation.
10. The Defendants’ unlawful conduct has cast Ms. Highsmith and the Foundation in a false light, has misused Ms. Highsmith’s personal name, and tarnished her professional reputation in a commercial manner, all conduct occurring without her prior, written permission.
Interesting, false light. But the complaint doesn't seem to add false light to causes of actions she sues for.
18. Furthermore, and independently, the Defendants must also account for damages to Ms. Highsmith and the Foundation, to be assessed under the Lanham Act and New York State’s statutes prohibiting false advertising and unfair competition...
These are the additions to causes of action. Lets see some facts backing them:
a. Getty was demanding up to $575.00 per image for a single user “license” to the Highsmith Photos (see Exhibit B);
I don't have Exhibit B. If anyone has it please post it. If I were to guess what this is, it should be something like a page on Getty site with the price on the right, as they are.
c. Getty profited from bundling commercial copyright “licenses” to the Highsmith Photos to book publishers, magazines and others, which included false commercial “licenses” to use the Highsmith Photos, with erroneous attribution. See, e.g.:
i. Exhibit C (Introduction, Inside the White House: The History, Secrets and Style of the World’s Most Famous Home, Time Inc., Books, April 22, 2016 falsely attributed to: “Carol M. Highsmith/Buyenlarge/Getty”;
ii. Exhibit D (Streetcar Named Desire, 2016, falsely credited to: “© Carol M. Highsmith/Buyenlarge/Getty Images”);
iii. Exhibit E (DK Eyewitness Travel, Washington DC 2016, falsely
credited to: “Getty Images: Buyenlarge/Carol M. Highsmith”; and
iv. Exhibit F (School in the Great Depression, 2017, falsely credited to: Getty Images: ... Buyenlarge/Carol M. Highsmith,”;
The phrase at c) seems a bit unclear or with redundant words, but the meaning is unmistakable. If it can be proven that book publishers etc were fooled into buying "copyright licenses" to Highsmith photos from Getty, then it would be a dream.
And then, here we go:
d. The Defendants also unlawfully demanded and received revenue to “settle” false and/or fraudulent demand letters, related to use of the Highsmith Photos, containing spurious legal claims they could never have lawfully asserted.
I admit, I believe misleading people like this really matters, and I want the right thing to happen here. But it's strangely not easy to figure out
how to go about it, in part because within copyright there isn't much for the public to use in order to curb abuses. (as I
lamented recently)
Now Highsmith team placed the extortion letters under Lanham Act claims and NY state laws on false advertising/unfair competition. OK... if it works. Lets see why they think it should.
Oh, but first, we get Zuma:
20.
Even more shockingly, and to demonstrate why treble damages are warranted, as part of the wider fraud perpetrated on the public, and on thousands of people and organizations, Getty currently purports to “license” tens of thousands of other images, in which it apparently owns no legal rights, in exchange for money that it knows that it is clearly not entitled to collect.
21. For example, after the original Complaint was filed in this case, on August 1, 2016, third party Zuma Press, Inc., also independently sued Getty in this Court.
I think that's fair: Zuma cited Highsmith case when they filed, Highsmith team doesn't lose the opportunity to hat tip Zuma. The thing is, these cases may prove to the judge just how we're not talking about random occurrences here, or about some commercial dispute without impact elsewhere. We're talking about
a pattern of behavior, first and foremost, and if in some way the judge will start to see that, I believe it will help.
Zuma and Highsmith can stand up against Getty; but how many of the extorted public would have 30k to try to? That's the question I hope the judge will ask himself.
26. The law firm of Cuomo LLC has represented over 3,000 individuals and organizations, including Church groups, non-profit organizations, and veterans’ groups, who received baseless threat letters from the Defendants.
27. On many occasions, when Cuomo LLC wrote to the Defendants, requesting proof that the Defendants were authorized to act on behalf of the copyright owner(s), the Defendants never responded.
Yes! That's Oscar's firm. 3000 representations of individuals and small groups, wow that's fairly amazing. This is what I meant above:
the pattern. I hope these details work to make the judge see the pattern.
I'm tempted to remind that this judge, Rakoff, seems particularly attentive to fraud/racketeering kind of behaviors.
28. Getty has also recently advanced a legal theory, through its public statements on this case, that claims that Getty was never actually “licensing” any of these images, at all, but rather simply it was making “public domain” images available (for thousands of dollars), as a convenience.
29. Nancy Wolff, counsel for Defendants Alamy and LCS, recently published a blog post advocating and endorsing Getty’s practice of “licensing” public domain materials for profit.
Lets see a quick answer on this:
31. Nowhere on Getty’s website did Getty ever reveal to those who were paying thousands of dollars in “license” fees that Getty owned no legal rights whatsoever to the images it was purportedly “licensing.”
32. Further, nowhere in the Defendants’ website advertisements or demand letters did the Defendants ever reveal that the Defendants possessed no legal rights whatsoever to threaten anyone for use – or, in the words used in Defendants’ threat letters, “infringement” – of these images.
Right. I said I try to keep it short, and it looks like no chance, I was reading it along again, as I was writing. I have to jump some part of the text, though. It's seriously all worth reading, it's understandable, makes sense, and it talks about things we know too well.
A quick note about this:
Defendant Getty Images is a $3.3 Billion Company Whose Primary Business is Buying and Selling Copyright Licenses for Photographs, Videos, Music, and Other Media.
Right. Its primary business is buying and selling copyright licenses, this is a statement of fact. When an entity whose primary business everyone knows is this, it can't come with a straight face and say "we call it license but we didn't mean copyright license, even though we didn't tell anyone it isn't".
Somehow I doubt any user could have possibly thought they're buying a driver's license.
This is really about how misleading/confusing the text is, to the user of their site. I can tell from the experiments I made, that it's entirely convincing that:
- I'm supposed to buy a license grounded in IP rights (it says that!), and
- without that license I am allegedly
NOT allowed to use the work on my website.
This is important. If we can make it clearer why it is so, I believe we should.
Topic: Highsmith v Getty, first amended complaint was filed (Read 8225 times)