I dealt here with only the first half of what
I called part 3) of Getty's answer: the state law claims, from the perspective of whether they're restating the same claim as a copyright claim or not. There's more to Getty's answer, when they say that the exact elements of these laws wouldn't be fulfilled for Getty's behavior. Here's an interesting one:
(citations sources omitted)
As the Second Circuit has explained, “the gravamen of” a claim under Section 349 “must be consumer injury or harm to the public interest.” Indeed, the statute is “modelled after the Federal Trade Commission Act,” and “federal courts have interpreted the statute’s scope as limited to the types of offenses to the public interest that would trigger Federal Trade Commission intervention under 15 U.S.C. § 45
Here, Plaintiffs have failed to allege any direct harm to the public interest. See FAC 256-260 (alleging that Getty Images’ acts have “cause[d] economic damages and irreparable injury to Ms. Highsmith and the Foundation,” without alleging any direct harm to the public).
There is harm to the public, and a significant one at that. It is the public who is affected most by the deceptive practices (as Rothman firm put it in
their older case against Getty), because they will believe Getty's purported "rights" over the photos, and buy licenses or settle extortion letters for worry that Getty's lawyers might be entitled to pretend what they do.
On this site, and in recent years many others as well, Getty's practices have been called "legalized extortion". But if Getty insists that it's "licensing" what it knew too well that it's public domain imagery, those practices become something else: namely, I'm not so sure I'd call them legalized anymore, when people are being chased with letters claiming "infringement" to pay up or else. At least, if Getty was honestly convinced they own them, lets say we'd be still in the "legalized extortion" grey area; but since Getty itself insists, in their own memorandum, that it was distributing "public domain" photos because it knew they were public domain, then Getty's behavior appears to be: we know we were wrong, but we'd just yell infringement to individuals or small business owners anyway, just to make them pay up 'cause it's not worth fighting, and hey, nothing will happen to us anyhow since they're public domain.
I'm not sure this paragraph was clear; it is most disturbing to me, to see how Getty tells the court in no uncertain terms, that it thought the images were public domain, and
that's why it "licenses" them - it "licenses" "rights" in them, then claims that no one can do anything about it, if they're free to use by anyone. Anyone but the thousands of users who receive
automated letters, that is, anyone but those scared into paying up, when nothing was due.
Topic: Getty answered to Carol Highsmith (Read 21547 times)