A class action lawsuit recently filed in a federal court in Washington accuses Getty Images, Inc. (“Getty”) of allegedly duping customers into paying for fictitious copyright licenses for images in the public domain that can be used freely.
The plaintiff in the case, Texas digital marketing company CixxFive Concepts LLC, claims that it was one of the victim’s of Getty’s wrongful conduct and alleges that Getty’s actions violated the RICO Act and state consumer protection laws. The wrongful conduct, according to the complaint, was not merely charging for the public domain images but rather deceiving customers into believing they needed to buy licenses for access to those images and purporting to restrict the use of those public domain images. The complaint concedes that “charging for public domain images is not illegal by itself,” but goes on to allege that “Getty’s and/or Getty US’s conduct goes much further than this… Using a number of different deceptive techniques, Getty and/or Getty US misleads its customers and potential customers into believing that it or one of its third-party contributors owns the copyright to all of the images available on its website, and that a license from Getty and/or Getty US is required to use all of the images on its website [when] [i]n truth, anyone is free to use public domain images, without restriction, and by definition in a non-exclusive manner, without paying Getty and/or Getty US or anyone else a penny.”
The complaint goes on to allege that “Getty and/or Getty US purport to restrict the use of the public domain images to a limited time, place, and/or purpose, and purport to guarantee exclusivity in the use of public domain images,” and that Getty’s license agreement currently “prohibits the use of licensed public domain works in on-demand products, such as ‘postcards, mugs, t-shirts, calendars, posters, screensavers or wallpapers,’ or in electronic templates, such as ‘website templates, business card templates, electronic greeting card templates, and brochure design templates.’” This conduct, the complaint alleges “deceptively purports to restrict the licensee’s preexisting right to free and unfettered use of public domain images.”
To add insult to injury, the complaint also alleges that Getty (through a company License Compliance Services, Inc. (“LCS”) which the complaint alleges Getty owns or controls) regularly sends copyright infringement letters to businesses using public domain images online “accusing them of infringing copyrights in public domain images.” The complaint gives an example alleging that “LCS sent a letter to Carol Highsmith, the noted American photographer who has donated tens of thousands of images to the Library of Congress, accusing her nonprofit foundation of copyright infringement for using one of her own public domain images.”
The lawsuit seeks to represent all licensees who have paid Getty for public domain images and seeks to recover treble damages, costs and attorney’s fees as well as an injunctive relief preventing Getty from “wielding a false claim of ownership of over intellectual property that is rightfully in the public domain.”
A copy of the complaint against Getty can be obtained here.
What is in the Public Domain?
The complaint against Getty centers on images in the public domain which begs the question: what is the “public domain”?
The “public domain” is not an actual physical repository of works but rather a term that refers to works that for one reason or another are not protected by intellectual property laws such as copyright, trademark, or patent laws. The works are in the “public domain” because the public owns them, as opposed to any individual or entity. Public domain works generally can be used by anyone without permission and, once in the public domain, no one can own them again—which is where the complaint alleges Getty got itself into trouble.
Works typically enter the public domain either because (a) the copyright expired, (b) the copyright was not renewed, (c) copyright notice requirements were not followed, and (d) the work’s owner deliberately placed it into the public domain. Additionally, several types of works are considered to be in the public domain because they are ineligible for copyright and include: (a) U.S. Government works, (b) state judicial opinions, (c) legislative enactments and other official documents and (d) common plots and stereotypical characters.
The Intellectual Property Law attorneys at Lubin Austermuehle have over thirty years of experience litigating complex class action, copyright, trademark, trade secret, non-compete agreement, libel suits, and many different types of business and commercial litigation disputes. Super Lawyers named Illinois commercial law trial attorney Peter Lubin a Super Lawyer and Illinois business dispute attorney Patrick Austermuehle a Rising Star in the Categories of Class Action, Business Litigation, and Consumer Rights Litigation. Our Chicago and Elgin copyright law, intellectual property, and business dispute lawyers and attorneys handle emergency business lawsuits involving copyrights, trademarks, injunctions, and TROS, covenant not to compete, franchise, distributor and dealer wrongful termination and trade secret lawsuits and many different kinds of business disputes involving shareholders, partnerships, closely held businesses and employee breaches of fiduciary duty. Our Chicago business lawsuit attorneys also assist Oak Brook and Wheaton area businesses and business owners who are victims of fraud. You can contact us by calling at 630-333-0333. You can also contact us online here.