Carol Highsmith is a nationally known photographer who famously donated photographs to the Library of Congress for free use by the public. When her nonprofit received a letter from two media licensing companies she had never heard of, she was shocked to see that it demanded payment to “License Compliance Services/Picscout Inc.” and alleged that her foundation was infringing the copyright in one of those photographs. Upon investigation, she discovered that Getty Images, the stock photo company, had more than 18,000 of her photographs on its website, purporting to license them for a fee. Another company, Alamy, had done the same with over 800 of her photographs. Moreover, License Compliance Services and Picscout appeared to be wholly owned subsidiaries of Getty Images that made money by alleging infringement of and demanding payment for images, including Ms. Highsmith’s. So Highsmith sued.

She and her foundation allege that Getty, Alamy, License Compliance Services and Picscout all: 1) violated 17 U.S.C. § 1202, the Digital Millennium Copyright Act’s provision forbidding intentionally removing, altering or falsifying copyright management information, by not correctly attributing the images to her and adding their own credits and watermarks; 2) engaged in false advertising and unfair competition under the Lanham Act, by suggesting they were Ms. Highsmith’s agents and acting with her consent or otherwise had a business relationship with her; and 3) violated New York General Business Law § 349, which forbids deceptive trade practices.

The defendants in the Highsmith case have moved to dismiss, arguing that Highsmith placed her works into the public domain and therefore has no rights to assert. Highsmith has countered that she merely intended to create a “Creative Commons” type license, with access through the Library of Congress. That motion is pending, but even if the defendants are successful, Getty’s practices are likely to come under further scrutiny. Shortly after Highsmith filed suit, Zuma Press, an independent press agency, also sued Getty, alleging that Getty was licensing more than 47,000 images that Zuma had exclusive rights to license.

As the Highsmith suit shows, claims of infringement should not be taken at face value. Some claimants may not have exclusive rights to the works they claim or might even be claiming rights in public domain materials. Investigation could also reveal that the claimed work is not registered with the Copyright Office or that a user directed the use, thus limiting the remedies available to the claimant. Anyone who receives a demand of payment for claimed “infringement” would be wise to investigate the claim carefully before paying up.