Earlier this year, the photography industry looked set for one of the most high profile legal cases in recent times. Getty Images found themselves the subject of a $1bn claim, with photographer Carol Highsmith accusing the company of copyright infringement by licensing and selling her publically available work without permission. Furthermore, the media company also demanded the photographer pay to use the photos which she had in fact created. Sounds like a pretty clear-cut case, right? Another example of big companies pushing their weight around?
The case was indeed clear-cut – but not as you might see it. You see, in this instance, notwithstanding the fact that Getty had no legal right to claim copyright ownership or exclusive licensing, the company did not infringe on any rights by selling the photographers work. And this is exactly how the courts saw the matter when they sided with Getty. Now, let me clarify this with a few words.
In the moral sense of proceedings, the fact that a company uses the free work of another person and charges for its use, almost in a manner that tries to pass it off as their own work, is simply reprehensible. It’s the sort of slippery and questionable conduct that calls into question ethics within an industry where photographers are sometimes criticised for their ethical judgement. But does this moral misguidance translate into breaking the law? No.
You see, Highsmith’s archive of photographs were in fact donated to the Library of Congress as public domain images. That is, the photographs may be used within the public in any way that one wishes to use them – including commercialisation. When such images are released to the public, in effect, they become accessible to everyone in society. Thus, even as a copyright creator, one loses the licensing controls they would otherwise have when deciding how creative work may be used.
In many respects, Highsmith could have avoided this problem through the manner with which she released her work. Through the public domain however, Getty may choose to sell the photos even if many of us view this as advantageous and capitalist behaviour. The price isn’t necessarily being paid for the picture itself, rather the accessibility to find it, or in the event it is printed, the physical material and labour involved with such.
Now as touched on earlier, Getty legally overstepped their mark when it came to their specific conduct requesting Highsmith to pay for the use of her own photos. Effectively, and the company may have argued otherwise, such actions suggest a claim over copyright ownership, when there is no entitlement.
With the case legally concluding last month, it serves as a reminder to all photographers about the pitfalls that accompany work released in the public domain. Even if you mean well with your intent to make your work free to all, that doesn’t mean others share the same charitable intentions.