[grengineer]

According to exhibit B [1] - The instrument of gift - she did not intend to relinquish her rights as there are specific conditions for reproduction of the works contained in the Carol M. Highsmith Archive.

Also explicit permission is given to the library to make copies of the work for security,preservation etc.

[1] Google Gov-Uscourts-Nysd-460787-1-2

[imajes]

You say that but that's not the reading I make of this contract. "I hereby dedicate to the public all rights, including copyrights,... that i posses in this collection".

that seems pretty clear cut to me. Conditions for reproduction only seem to express the general ways the content should be available for users of the library. Nothing limiting availability, in fact it's promoting methods of being available.

So that leaves the question of a: whether or not getty et al were able to sell works in the public domain. My quick read of it seems that if they can come up with some kind of argument that they are selling derivative work (including perhaps some kind of unique identification layer, or meta data perhaps ... ?), OR that they are selling a reproduction. tenuous, but that may be their justification.

as for requesting a license fee, well that's on LCS and Alamy (who I don't think have had an issue in the past 3 years of this stuff, so the multiplier doesn't apply here)

NB: Alamy being a uk company, so they can hide behind a corporate shield if their assets are mostly offshore...

this is the settle page, from the first exhibit: https://settle.lcs.global/103173853953 -- that's what she got sent. It doesn't appear that they argue they are the exclusive license holder, and especially if they argue they are holding a license to derivative work -- well. that's a whole ball of wax.

Thinking further, since she no longer holds the copyright to these images, and the United States is not listed as a co-plaintiff, I'm not even sure she has standing to bring this case at all -- but, on that, IANAL. :P

[grengineer]

I am not a lawyer either but I think even if you adhere to the declaratory theory of law and take this waiver literally word for word

I hereby dedicate to the public all rights, including copyrights throughout the world, that I possess in this collection.

I have the feeling the lawyer who drafted this instrument of gift was a very competent one as in USA law the copyright of a collection or compilation does not affect the copyright of the works included in it.

17 U.S.C. § 103(b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.

[imajes]

Yeah. you're absolutely right, that clause will be the point of argument. This is where my lack of legal education fails me though, since it is not clear what it means when saying _material contributed by the author_ and what _preexisting material_ means.

[imajes]

Also, this appears to be down to a getty user called 'buyenlarge', who is listing all kinds of work they don't own.

For example:

This photo-

http://www.gettyimages.com/license/515020819

is actually this photo:

https://www.flickr.com/photos/library_of_congress/2178341487

which was taken by a now dead photographer called Russell Lee, and owned by the Farm Security Administration.

PS: this same person appears to have about 500k listings for prints etc on amazon.com..... why aren't they a co-defendant?

[nikdaheratik]

Well the lawsuit names "John Does 1-100" as co-defendants so I would guess one of them.

[e40]

Good catch!

[tombrossman]

Interesting to see that Alamy are involved with this. I have firsthand experience dealing with them first as a photo contributor and later as a copyright holder finding Alamy to be in breach of both UK copyright law and also their own contributor agreement.

Alamy claim they delete all copies of contributor photos from their servers 45 days after you terminate your contract but failed to do this, and continued serving my images for many months after our agreement ended. When I contacted them they first claimed it was Google's fault (cached images) and them later admitted they had done it but were still defiant and claimed they could do it because finding my images was 'difficult'.

They are a large photo agency and their infrastructure is first-class, so I had some interesting email and telephone exchanges with Level 3 and AWS when I sent them DMCA takedown notices and explained that there was no 'safe harbor' for them and I had absolute proof (the Exif metadata with my name and copyright notice was still preserved in the images and I provided direct alamy.com/... links to them hosted by Alamy).

Blog post here, if you want the whole story including replies from Alamy. They seem like one of the better photo agencies but damn, they really don't like being held to the same standards they hold the public to. https://www.tombrossman.com/blog/2014/alamy-copyright-and-ex...

[xg15]

> My quick read of it seems that if they can come up with some kind of argument that they are selling derivative work (including perhaps some kind of unique identification layer, or meta data perhaps ... ?), OR that they are selling a reproduction. tenuous, but that may be their justification.

Wouldn't this make all electronically transmitted media into "derivative works", though? This sounds like such a reading would make the concept meaningless (and also possibly contradict the outcome of other infringement/attribution cases)

[imajes]

as broad as that yes, but if you enhance the work during transmission (e.g. by including meta data about the work) you may be able to argue derivation. i think it's an area where clearly technology and the ability to reproduce like-for-like fails the reading of law as it stands today.

[xg15]

This still seems shaky to me: wouldn't then, e.g. the Google image search pipeline perform an enormous number of copyright violations every day? They download images from a huge number of different rights holders, store them on google servers, recode them to produce thumbnails and distribute the recoded images via the image search UI. By your logic, they'd have to ask every single rights builder for permission to create derived works before they can include their images in image search.

Additionally, every time I download something from the web and store it on my hard drive, my OS will enrich it with metadata: file name and path, timestamps, local user, permissions, etc. So unless a site author grants all visitors the permission to create derived works, I'd be infringing just by visiting their web site.

Finally, if you assume that only some metadata counts as creating a derived work, Getty would have to prove that all users they threatened did in fact use Getty's "enhanced" version of the image and not the original. I find it very unlikely that the photographer herself would have used Getty's version and not herselfes, so I don't think they did that.

[mthoms]

I'm not sure about your other points but image search thumbnails have been found by the courts to be fair use. https://www.eff.org/cases/kelly-v-arriba-soft