DMLA makes a statement on Highsmith v Getty

[Engel Nyst]

DMLA is a trade association promoting the interests of digital images corporations, including Getty and Alamy, apparently. From its About page:

Working to insure the future of our industry
For over 60 year the Digital Media Licensing Association (DMLA), formerly known as PACA, has developed business standards, promoted ethical business practices and actively advocated copyright protection on behalf of its members. In this era of continuous change, we have remained an active community where vital information is shared and common interests are explored.

DMLA made a statement on the Highsmith v Getty/LCS/Alamy lawsuit:
http://blog.digitalmedialicensing.org/?p=3444
Their statement essentially argues that Carol Highsmith gave up copyright into the images, and thus stock image libraries are entitled to reproduce, distribute, sell them, and call that a purported "license".

I take below parts of that statement. I note first that Nancy Wolff, DMLA counsel, says Highsmith's photos are in the public domain. On the contrary, Carol in her complaint says that the photos are not in the public domain, but she retained copyright and offered the public the rights to free reproduction and display. But lets see about public domain.

CAN ANYONE USE PUBLIC DOMAIN IMAGES?
by Nancy Wolff, DMLA Counsel

Answer: YES, there are no restrictions on any use of public domain images, including making them available to users for a fee.
That's correct, for public domain images. The fee is not for a purported license, though. If there's no copyright, there are no copyright rights to license.

The purpose of limits on copyright is that the public domain benefits the public and serves the public good. Once a work is in the public domain, anyone can make a productive use of it, including commercializing the work. This applies to all works that can be under copyright, such as images, books and music. You can still buy a book of Shakespeare’s plays published by numerous publishers. Or you can go to the library and painstakingly photocopy each page.  You have a choice. The same is true with images.
This is correct, for public domain images.

Many DMLA members specialize in or include archival material in their image collections and make theses images available to publishers and other users and charge a fee. There is nothing improper or illegal about that. These archives or the collectors have made substantial investments in scanning, enhancing, keywording and making their copy of the public domain work easily searchable and usable. So a publisher can find a copy of an image from another source, but it may be low quality, it may only be in print form and it may not be easy to locate and use. With tight publishing deadlines, having a source of an image that is readily available and searchable adds value and is a benefit to users.

Except this is not the case here. As far as anyone can see, the Library of Congress appears to have made investments in digitizing images, and published them on its website. I've looked up an example from the complaint, and Getty and Alamy's copies are plain copies of the files on the Library website.

For example, this mentions that work:

They [Carol Highsmith and C. Ford Petross from Library of Congress]immediately started working together to raise the funds that were needed to produce hard copies of Highsmith’s negatives.

I don't know what involvement in the work had Getty Images or Alamy - is this the work and investment they were doing? Moreover, first photos were on old negatives, but most photos in Highsmith collection were born digital.

Nor is it improper to call the fee charged to use a public domain image a “license” A license merely means permission to use “my copy”. You can have a license that applies to the access and use of a copy, or it can apply to any sort of IP license such as copyright, trademark or patent. But the term only refers to permission and it is not limited to an IP right.  So archives and image libraries that have some historical out of copyright works can license those works to a user for a specific purpose because those are the contract terms a user agrees to.

It *IS* improper to call it a license, because a license on Getty's website means a copyright license, and suddenly calling it the same thing surely misleads people into thinking it is necessary.
A license almost never means permission to "use my copy", as Nancy Wollf says. In fact, I don't think I've ever seen it named that, in about seven years. Even if it was, we're not talking here about a physical paper-printed photo kept under glass in a museum. We're not talking about "my copy" to which I give you access. We're talking about 18,000+ plain copies of digital files copied from files already made public by the Library website.

In fact, while Carol's photos seem to have been taken down by Getty, everyone can see right now photos which are indeed in the public domain:
http://www.gettyimages.com/event/new-images-from-contributor-buyenlarge-139643028#amarillo-texas-general-view-1943-picture-id139233453

The same "Buyenlarge" contributor whose name was plastered over some of the Carol's photos. I clicked on "License", and I got:
http://www.gettyimages.com/license/139233453
License type: Rights-Managed.
Clicked on the Info "?" sign near Rights-Managed, and it said:

Rights-managed products are licensed with restrictions on usage, such as limitations on size, placement, duration of use and geographic distribution. You will be asked to submit information concerning your intended use of the product, which will determine the scope of usage rights granted.

What "rights" are granted, again, for a public domain digital image? I'm sure Nancy Wolff would know, since according to her, "license" is not about "IP Rights".
This whole page is just wrong. There are no restrictions on usage, if the photo is public domain, nor limitations on size, placement, duration or geographic distribution.

Click on "Rights Managed", and I get this page:
http://www.gettyimages.com/Corporate/LicenseAgreements.aspx#RM

I can't even begin to count how many things are wrong with that page, for a public domain image. I pick one: citation. The page claims that the user must cite the archive as  "[name of photographer] / [Collection Name] / Getty Images". Otherwise, he/she will be charged 100% fee in addition to other remedies Getty would allegedly have. The irony.

TL;DR: on Nancy Wolff's claim that you can call it a license, I don't believe that's okay, because it's confusing from the mere fact that we're talking big stock photo websites with a lot of copyrighted images. The user is sure to be mislead by naming it "license" on public domain works, they will understand it's copyrighted. But that's nothing compared to what really happens in this case, when Getty's website leads the user looking at the license to the pages about IP rights they do actually not have.

[Engel Nyst]

If you're wondering whether this example of Buyenlarge is indeed in public domain, here is the same image:
https://commons.wikimedia.org/wiki/File:Image-Amarillo_Texas_March_1943_View_2.jpg

This work is in the public domain in the United States because it is a work prepared by an officer or employee of the United States Government as part of that person’s official duties under the terms of Title 17, Chapter 1, Section 105 of the US Code.

Edit: also, it's made accessible in digital format by the Library of Congress:
http://loc.gov/pictures/resource/fsac.1a34724/

[Engel Nyst]

Let me look at this differently:

Potential of misleading users
Both the image and the agreement are similar with the agreements Getty makes for "rights managed" images it has exclusive rights for. All the legalese contains a lot of restrictions and keeps talking about Getty's "rights". It is basically impossible for me to read these and conclude that maybe Getty doesn't have any rights to exclude others whatsoever, when it makes a warranty that "[Getty] has all the necessary rights", and it says plainly that it gives me only some very limited usage.

And it is of course impossible to conclude that it's perfectly fine if I have a copy of this image and make another copy of this image. On the contrary, by its words, the agreement says I'm in breach. But that's wrong, I *am* entitled to make a copy, it's a public domain image. Nancy said it too - "ANYONE can".

This example is a digital image, in the public domain. The exact image, apparently resolutions too, is available on the web for free, on the Library of Congress site as well as others. This is NOT analog material. The page with the photo doesn't say "I show you a digital file but I'm talking about a 'license' on an analog copy in my possession". If that is what it meant, then the user can't read that on the pages.

Added: Maybe it turns out to be in print when they try to shop?
Nope. I just tried to "license" the image, from UK, for use in US. I "licensed" it for web and mobile. The wizard warned me that for commercial use I need "third party permissions", and to contact my local Getty office for that "license". It gave me a price:
$49, for 3 months, digital image for web and mobile use.

Nothing in this wizard says "hey, it's a public domain image. You do NOT need our permission to use it on your website." Everything in it says, on the contrary, that I don't have permission to use it after 3 months.

That the user is lead to believe this image must be licensed to be used seems to me clear, and this is a disturbing aspect.

Are there any contractual obligations?
I'm also not convinced of Nancy's claim that the contract could be enforced for users that agreed to it. It's this part of her statement:

archives and image libraries that have some historical out of copyright works can license those works to a user for a specific purpose because those are the contract terms a user agrees to.

I think that, in the case of digital images, the contract would be preempted. (https://www.law.cornell.edu/uscode/text/17/301)
It says basically that when the dispute is about state laws (such as contract interpretation and stuff) applying to actions regulated by copyright, like reproducing on your website, you don't have a claim for breach of contract. Instead copyright law applies: if the image is public domain, users can reproduce it. Period. (I note that there is some mixed case law on this, though.)

If it wasn't preempted, then we'd get an interesting situation:
1) users who just ignored Getty's "rights" and downloaded the image can use it free of restrictions. (it's a public domain image!)
2) while users who believed they should do the right thing and "license" it from Getty, would - according to Nancy - be bound by their contract with Getty, to many restrictions on use, duration, sizes, etc.
Nice result.

Chasing down "infringement"
Even if all would be false, Getty still can't do copyright enforcement on the digital image. "Pay up or you're a copyright infringer" on a public domain image.

[Engel Nyst]

Here is another public domain image, "licensed" by Getty "with restrictions on usage" and "for all commercial and promotional uses contact your local office":
http://www.gettyimages.com/license/114938474
I read here that Getty doesn't allow commercial or promotional use without a license from them. Which is wrong, because Getty doesn't have the right to restrict anyone from making commercial use of a public domain image. As Nancy mentioned too.

Here is selling this public domain image done right:
http://www.retrosnapshots.com/old-coney-island-new-york-photo-razzle-dazzle-ride.html
Without knowing the site, it looks perfectly fine to me. Notice that below the price, you choose: "Print size". You can also choose frames. You might have free shipping or pay USD 5.

Nowhere on this page is any purported "license", nor talk about "rights" and "restrictions on use". The user surely isn't lead to believe that somehow mysteriously copyright will attach to their use.

[Robert Krausankas (BuddhaPi)]

Nancy Wolff doesn't really have a good reputation around here, she' been tossed under the bus before, and once again it appears Nancy Wolff from DMLA ( PACA) is once again making an ass of herself.....the below snippets are from an old thread found here:

 http://www.extortionletterinfo.com/forum/profile/?u=1;area=showposts;start=780

"The advice disseminated by Nancy Wolff to PACA members has effectively been neutralized as insufficient and blatantly ignores what has been stated in the Copyright Act as a proper copyright registration."

"If Masterfile hadn't stupidly tried to claim $6 million, maybe Chaga and Oscar wouldn't have had to embarrass the entire stock photo industry most notably PACA, Nancy Wolff, Steve Weinberg, and Masterfile."

"These documents are very good reading and quite a brutal and explicit setback to those who followed Attorney Nancy Wolff's and PACA's "shortcut" and circumvention copyright registration advice.  Every member of PACA who followed Nancy's advice has found out the hard way her advice did not hold up."

[Matthew Chan]

Building on what Robert said, Nancy Wolff's name is familiar to us just like some of the propaganda she was trying to peddle to the unknowing.

Nancy Wolff's PAID job is to be the stock image industry's legal spokesperson. We recognized that early on. We also recognize how these small "industry organizations" work. They live off the financial donations & "contributions" of its members.  So DMLA's Nancy Wolff is being paid to sell legal propaganda that supports their industry's efforts.

Fortunately, we have in our corner Oscar Michelen and the scrappy ELI team who help be the eyes and ears of what people like Nancy try to sell and we find weaknesses and flaws in opposing arguments.

For example, Nancy mentions the Carol Highsmith case and the claim the images were in public domain. Nancy then tries to tiredly explain what public domain images are and how innocent what Getty Images was doing and the expense of archiving, scanning, and managing images. Except Getty Images is not a non-profit organization nor did they archive those images as a public service. Getty Images is very much a for-profit business.  LCS is also. They send extortion letters out because they are implicitly saying the party they represent own the images and have a right to profit from them. And if you don't pay, they might take legal action against you.  That is the context in which they operate, not altruistic actions of trying to preserve and service abandoned public domain images.  GMAFB.

Profiting from public domain images does not mean you lie to the public by saying you or your client owns them and then demand payment... or else. 

Nancy Wolff is trying to sell more propaganda and we aren't buying it. We know her and DMLA/PACA's history. Getty Images and LCS were caught red-handed trying to extortion money from the very person who made the contribution to public domain!

In fact, Oscar and I haven't made an official announcement yet but Oscar called me last week and we had a discussion.  He wants to hear from any victims who received an extortion letter for a Carol Highsmith image!

Oscar has no love for how Getty Images, LCS, and their ilk operate. You can read it for yourself in his recent commentary.
http://www.courtroomstrategy.com/2016/07/1-billion-lawsuit-against-getty-images-shows-effects-of-trolling/

Nancy Wolff can peddle her propaganda all she wants but this is only the start of things to come.