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When Public Domain is NOT Public Domain – The Story of Carol Highsmith

1 min read



When is a public domain image not in the public domain? When you can be told you owe a license for it.

Carol Highsmith is a famous photographer who, for nearly the past 30 years, has dedicated her photos to the Library of Congress to be placed in the public domain. Imagine her surprise when a stock photo agency hit her with a demand letter over one of her own images that was also in the public domain.

Highsmith is suing Getty Images over this but the path of the case is not a clear one. Even worse, it could have a major impact on YouTube, with so many YouTubers dependent on public domain images, audio and video (myself included).

So let’s take a deep dive into this bizarre case and see what we find.

*Documents*
Original Complaint: https://www.plagiarismtoday.com/wp-content/uploads/2016/09/highsmith-v-getty-images.pdf
Amended Complaint: https://www.plagiarismtoday.com/wp-content/uploads/2016/09/S.D.N.Y.-16-cv-05924-dckt-000031_000-filed-2016-08-17.pdf
Getty’s Motion to Dismiss: https://www.plagiarismtoday.com/wp-content/uploads/2016/09/Getty-Highsmith.pdf

*Where to Find Me*
Website: https://www.plagiarismtoday.com
Business: https://copybyte.com
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11 thoughts on “When Public Domain is NOT Public Domain – The Story of Carol Highsmith

  1. Wait Wait Wait, Let me get this straight, They are licencing photos that are in the public domain to sell? What would be the point of paying for them if you could still just use them for free? Or are they using these photos and not giving anyone else rights to use them commercially?

  2. I have a personal question I have done a journalism project and did copy a definition from Wikimedia. My professor gave me a zero for Plagiarism. which I had no idea what that even meant but any way I did a little reading and saw that if its a public domain I can copy the definition& its then not plagiarism. Is this correct?

  3. Perhaps I don't understand the legalities on PD but Getty's stance seems to be that you are surrendering your work over to them completely for them to make money out of, esp if they are dealing content out to third parties or sending out threatening copyright letters demanding money before asking for a simple take down instead. It would seem this produces good results, whether Getty are telling the truth about holding the images or not, although some don't give in so easily..https://www.theguardian.com/technology/2008/nov/27/internet-photography

    edit:- tips here if you receive a letter http://artlawjournal.com/tips-responding-getty-images-demand-letter/

  4. This is an odd one. As it is legal to sell Public Domain works (ex. The PD movies shown in video) I don't know how this company acquires the work but my guess is people bring them and sell the license or copyright to them. So they then put it up on the site for license for a third party to use.

    1. a. Carol Highsmith. b. This is America! Foundation2. a. alamy, Getty Images and other organizations b. 100+ John Does3. Library of Congress ie Public Doman4. Photo
    I think that flow of the Picture went like this
    [(1a+4)>4>3=3+4] [4->(2b+4)>4>2a=2a + 4]
    The argument I am making is that Getty Images has no clam because the 2b did not have legal copyright or license to the artwork unless it was transformed. I am going to assume that the 2b was scamming 2a buy selling them material from the Public Doman. And 2a did not do the due diligent and were licensing 4 to paying costumers and sent a settlement demand to 1a who is run by 1a and brought this to light.
    I am assuming that the picture and possibly many others were all fraudulently Copyrighted at once as part of a portfolio by a scammer. Typically 2bs produce their own work and copyright it legally. In other words a scammer slipped through the cracks and alamy has a fraudulent copyright and have opened themselves up to a class action lawsuit.

    "https://settle.lcs.global/Templates/PreviewPdf?caseId=9000038091387800&fileName=RHFSigned.Alamy.US"

  5. haha…….way I see it, somebody forgot to tell Getty Images that if somebody "gives up" their rights to a photo, (placing them in a Public Domain),
    it doesn't mean the photo's rights are available for them to grab. Did I get this rigth?
    To me it seems a lame thing to do. And from who? Getty. A company I thought was …..well, decent.

  6. Great video and this is an interesting topic.

    Say I held copyright on a piece of work, like a song. And I let the copyright expire. It becomes public domain. Can I later go back and renew the copyright and remove it from public domain? (Say a day later). If I can, should there be a difference between me as the original creator being able to engage a copyright versus any other person in the work engaging a copyright on my now public domain piece?

  7. So is this case good or bad? Like you said, on the one hand she is trying to stop the exploitation of PD photos, but on the other hand, Getty are fighting for keeping the rights of a PD work truly PD!

    Thanks for the great content as always!!

  8. Getty also licenses Public Domain images from NASA:  http://www.gettyimages.com/photos/nasa?sort=mostpopular&excludenudity=true&mediatype=photography&phrase=nasa#license.  Doing a quick search, some hi-res images are licensed for $500+.

    I don’t have a problem with third-parties exploiting PD works, including those works from Shakespeare and Mathew Brady (civil war photographer). However, do Getty and other licensors of PD works have standing to sue others who exploit
    their collection of PD works. I say no.

    Perhaps Getty is using contract law (via its Terms Of Use appearing its website) that visitors unwittingly agree to when they search its collection of images (by checking a box, visitors agree not to exploit any Getty images, including those in its Public Domain catalog without a license). Getty may now have standing to sue, but not for copyright infringement, but for breach of contract –send Getty $120 to make it all go away.

  9. Wow this is super interesting. I wonder how this will turn out. How would this work with the movies you showed. Since they are in the public domain could somebody theoretically pirate these films legally? Or would it even be pirating? A website called archive(dot)org has alot of movies and music uploaded by the sites users. If these works, like this womans photos, are being licensed are the uploaders open to being issued a takedown as well?

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