When a stock photography company sent a bill for use of ‘unlicensed’ photography, it could be said they picked the wrong person to threaten.
Here at this blog, I make no bones about the fact that the majority of images on this blog are stock photography. There are some blog “experts” out there who argue against this: they insist that bloggers should always take their own photos rather than relying on stock.
I tend to agree in certain cases: if you’re a food blogger, for example, who primarily deals with recipes, you should certainly take pictures as you cook and highlight what your creations look like.
On the other hand, there are cases that don’t lend themselves well to taking one’s own photos: in my case, I publish a multi-topic blog with daily posts! I wouldn’t begin to have time to take the photos this blog would require nor the range of subject matter appropriate photos would need to feature and still make my deadline.
This isn’t a photo blog: it’s a topic blog that happens to use images to help illustrate the points I make. But this blog isn’t about pictures: it’s about the text I write that hopefully entertains, informs, and, hopefully at least once in a while, makes people think.
I’ve never had an issue with stock photography because I properly pay for the stock images I use.
But a 70-year-old photographer, Carol M. Highsmith, was surprised to receive a letter claiming she was committing license infringement. The letter demanded an immediate settlement of $120 be paid by her This is America! Foundation a non-profit organization she founded in 2011 “with the mission of producing a nationwide visual study of the United States of America in the early 21st Century,” the lawsuit states.
Without such payment, legal action could begin against her.
There was just one problem: she knew at once the image she was accused of using without securing proper licensing was in the public domain.
She knew that because she took the picture herself then donated it to the Library of Congress.
The photographer, Carol M. Highsmith, has been “accused“ by the Library of Congress of committing “one of the greatest acts of generosity in the history of the Library.” In total, since approximately 1988, she has been making her photographs available to the public for free through the Library, donating a collection that is expected to include 100,000 images.
Since approximately 1988, Ms. Highsmith has made her photographs available to
the public for free through the U.S. Library of Congress, thereby exercising her exclusive rights
under 17 U.S.C. § 106 to distribute copies of her copyrighted work to the public by sale or other
transfer of ownership, and to authorize others to do so.
A huge gift, indeed.
According to the actual lawsuit filed, the defendants are accused of “gross misuse” of 18,755 of Highsmith’s photographs, specifically because they have “no contract or other agreement with Ms. Highsmith related to the Highsmith Photos” and have not “otherwise obtained any license, permission, or other grant of rights in the Highsmith Photos from Ms. Highsmith.” She also claims on the company’s website, photos are listed with “materially false information” about the name and other identifying information about the author of the photos, the copyright owner of the photos and the terms and conditions for use of them.
Under normal conditions, the most Highsmith would be able to ask for in damages would be $25,000 per violation, which would entitle her to a total possible reward of $468,875,000.
The actual lawsuit alleges, however, that the company has not only violated the Digital Millennium Copyright Act, 17 U.S.C. §§ 1202(a), 1202(b) and 1203, but was also found to have violated a section of the same act within the last three years.
At that time, the suit claims, the company was ordered to pay more than $1 million in damages.
Here’s where it gets interesting: because of that previous violation within three years, the suit alleges the court in this new case may triple the statutory damages, leading to possible total damages of well more than a billion dollars.
It will be interesting to see how this unfolds.