Carol Highsmith, a renowned American photographer, has filed a lawsuit against Getty Images (“Getty”) and others for violation of the Digital Millennium Copyright Act (“DMCA”).1 Specifically, Highsmith alleges that the three defendants – Getty and Alamy (companies that sell stock photos) and License Compliance Services (“LCS”) (a company that searches the internet for copyright-infringing photographs and seeks to enforce copyright licenses) – violated 17 U.S.C. § 1202 by providing, distributing and altering the copyright management information (“CMI”) of thousands of Highsmith’s photographs. Statutory damages could bring the final judgment against Getty alone to over a billion dollars. The case raises interesting issues surrounding the interpretation of § 1202 and the statutory damages framework.
Alleged Improper and Illegal Use of Photographs
According to the complaint, Highsmith donated her photographs to the Library of Congress in 1988, making those photographs free for public use and duplication but remaining the copyright holder.2 Her photographs are all available on the Library of Congress website. In December 2015, Highsmith’s foundation received a letter from LCS on behalf of Alamy, accusing the foundation of copyright infringement and demanding payment of royalties for the use of one of Highsmith’s own photographs that her foundation was displaying on its website.3 Upon receiving this notice, Highsmith contacted LCS and afterwards received an e-mail stating that LCS had closed her case – “thereby implicitly acknowledging the correctness and propriety of her position.”4 She later discovered that Getty offered over 18,000 of her photographs available for sale on its website and that Alamy had over 500 for sale on its website.5 The Highsmith Complaint alleges that the defendants’ uses of her photos were improper and illegal.6
Both websites provided CMI for the photographs—i.e., information regarding the photographs’ authorship and copyright status—and Getty also provided a watermark claiming it had an ownership in the photographs.7 The Highsmith Complaint states that Getty did not identify Highsmith as the sole author and copyright owner of the images.8 Allegedly, Getty’s CMI for these photographs stated “By: Buyenlarge,” or “Credit: Buyenlarge/Contributor” together with the image title, or partial title, and “(Photo by Carol M. Highsmith/Buyenlarge/Getty Images).”9 The complaint alleges that Getty and Alamy violated 17 U.S.C. § 1202(a), which prohibits providing or distributing false CMI, and § 1202(b), which prohibits removing or altering CMI, by listing incorrect CMI alongside Highsmith’s photographs on their websites.10 Section 1202(c) defines CMI as information, such as the name of an author, the name of the copyright holder, and terms and conditions for the use of the work that is “conveyed in connection with copies or phonorecords of a work.” The Highsmith Complaint alleges, inter alia, that Getty and Alamy violated § 1202 by not listing Highsmith as the sole author and copyright owner of her photographs on their websites.11
On July 28, 2016, Getty stated that it was reviewing the Highsmith Complaint; that it is not illegal to charge money for works in the public domain; that it provides valuable services—indexing and making content searchable, providing a variety of delivery services for images, and furnishing legal indemnification for copyright violations for those who purchase images from it—and that it intends to...
