Using copyright litigation to stop copyright infringement being stolen

One photographer, Carol Highsmith, is suing Getty Images for more than $1 billion for allegedly selling her copyrighted work to the public without permission and with incorrect attribution.  In her lawsuit, Highsmith, states that she first learned Getty was selling her copyrighted photographs when one of Getty’s affiliates sent her a cease and desist letter accusing her of copyright infringement for using her own photograph on her own website.  According to Highsmith, Getty demanded a $120 settlement payment.  The photograph, which shows the famous shuttlecock sculptures in front of Kansas City’s Nelson-Atkins Museum of Art, is one of over 18,000 Highsmith photographs which Getty has allegedly been selling.

However, Highsmith has donated these images to the public by giving up the right to reproduce and display all of the aforementioned photographs for free to the world via the Copyright Office’s Library of Congress.  Nonetheless, Getty has been selling these publicly donated photographs and sending cease and desist letters to people who have displayed Highsmith’s photographs.  After learning of Getty’s activities, Highsmith retained an intellectual property attorney who specializes in copyright laws to file a copyright litigation suit against Getty in New York for approximately $1.4 billion in statutory damages.

Unlike most copyright lawsuits, Highsmith is not suing Getty for copyright infringement.  Instead, Highsmith is suing under §1202 of the Digital Millennium Copyright Act (“DMCA”) for providing false copyright management information (“CMI”) and removing or altering CMI. Under the DMCA, CMI includes the title of the work, the name of the copyright owner, information about the copyright owner, and other identifying information related to the work.  According to Highsmith, Getty was intentionally providing false CMI for her photographs such as “Credit: Buyenlarge/Contributor” and “Photo by Carol M. Highsmith/Buyenlarge/Getty Images.”  Highsmith and her attorneys assert that this is a violation of her rights under the DMCA.

So how did the intellectual property attorneys retained by Highsmith calculate well over $1 billion in damages?  For each individual violation under §1202 of the DMCA, a plaintiff can recover no less than $2,500 in statutory damages and may recovery up to $25,000.  Highsmith’s attorneys found that 18,755 of Highsmith photographs were being sold by Getty.  If Highsmith can prove that there were this many violations, then she would be entitled to a minimum of $46,887,500 and a maximum of $468,875,000 in statutory damages under §1202.  Furthermore, because Getty has violated §1202 within the last 3 years, the maximum statutory damages may be trebled up to a grand total of $1,406,625,000.

If you believe your images or copyrighted works have been stolen, feel free to contact one of our copyright attorneys for assistance.

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