Getty Images and Public Domain Photos

You may have recently heard of an interesting lawsuit filed by photographer Carol Highsmith who has sued Getty Images for $1 billion in damages.  The suit stems from a letter sent to Highsmith demanding that she pay for the use of a particular photograph uploaded to her personal web site.  One problem:  Highsmith herself had taken the photograph.  Understandably angry over being asked to pay for using a photograph that she herself had taken, Highsmith did a little investigating and discovered that the photo was one of thousands she took and allowed the public to use for free.  As it turns out, Getty charges consumers for the use of these photographs Highsmith has dedicated for free public use and also charges consumers for the use of thousands more photos in the public domain due to the expiration of the copyright term of protection, the failure of the owner to renew a copyright, or due to the photo’s status as a government work (which are unprotected as a matter of statute).

The story resonated with me because I had discovered in unrelated research that Getty was routinely charging consumers $120 dollars a year for web site use of public domain photos.  For example, you can download a nice unprotected picture of author Rudyard Kipling on the Wikimedia Commons for free and do whatever you want with it, or you can go to the Getty web site and fork over $120 per year for using exactly the same picture.

Now, I’m firmly of the opinion that it’s immoral for Getty to charge so much, but is it illegal?  Well, Getty does not claim to own the copyright in the public domain photos it sells, so that makes fraud harder to argue, although it nowhere reveals that its goods can be obtained for free elsewhere.  It claims to be making photos easier to find, and it will, apparently, promise to defend you if you are sued for using an image you obtain from Getty.  Although it’s hard to see why its efforts are worth $120, we don’t have a general legal doctrine that prevents sellers from over charging.  And there’s certainly no rule against charging consumers for access to public domain goods.  I just recently paid $1.99 for 8 public domain Alexandre Dumas novels digitized for my Kindle.  I could have gotten many of them for free at Project Gutenberg, but it was so much easier just deal with Amazon.

My book experience is illustrative.  First, it shows that there should be no general rule against charging for public domain works.  Many who repackage and provide access are doing a public service.  One’s hesitancy about endorsing Getty’s practice is probably driven by its fees in relation to the value added by its services.  A second point is more subtle.  Most people, even if they are not copyright lawyers, know that The Three Musketeers is in the public domain.  They are unlikely to overpay for a new edition.  This is not true with photographs, where massive problems exist in trying to determine public domain status.

Imagine you see a photo from a 1940 issue of Life magazine that you’d like post on your web site.  Is it protected by copyright or is it in the public domain?  First, the date of publication of the photo will probably not be listed, making it difficult for you to determine whether the copyright is expired.  Second, was the copyright in the photo registered or renewed?  Well, my research shows that from 1924-41, only 2037 photographs were properly registered and renewed.  Since the Corbis web site offers 64,578 photos for license that were taken between 1924-41, it would seem that only a tiny percentage of photos from that era still protected.  But, of course, you want to be sure, because willful infringement of a single registered copyright can carry with it damages of up to $100,000.

Unfortunately, you’ve got a massive problem making sure.  First, renewal and registration records for works from this era are not on-line, so you’ll have to pay the Copyright Office $200 per hour to search the records.  And guess what, that search might take a while because the actual photo it is searching for is not sitting in the Copyright Office filing system.  The records are by title, so if the photo from Life you want is of Franklin Roosevelt, good luck guessing whether a work recorded in the Copyright Office under the title “Franklin Roosevelt” is really the one that you want to copy.

Of course, this state of affairs is shameful and maybe even unconstitutional.  How can you justify a property rights recordation system where the public cannot find out the scope of rights?  Worst of all, it creates the opportunity for Getty to exploit a public that faces serious hurdles in informing and protecting itself.