Getty Images Sued Again for Trying to License Public Domain Images(techdirt.com)
techdirt.com
Getty Images Sued Again for Trying to License Public Domain Images
https://www.techdirt.com/articles/20190329/15352641901/getty-images-sued-yet-again-trying-to-license-public-domain-images.shtml
104 comments
I was about to ask: doesn't licensing imply the power to enforce exclusive ownership of some sort, making the claim one can license public domain works misleading if not fraudulent?
Follow-up question: with that in mind, if this is true, how did Getty Images manage to win these lawsuits then?
Follow-up question: with that in mind, if this is true, how did Getty Images manage to win these lawsuits then?
It looks like most of the previous lawsuits were thrown out because the private entity suing didn't have legal standing to bring such a suit. From later in the article:
> It seems more like something the FTC or state Attorneys General could go after instead.
> It seems more like something the FTC or state Attorneys General could go after instead.
The article is a steaming pile, written by someone who has no idea what's what.
The previous case had standing as an issue because the individual in question was not hurt by the specific alleged fraud. This is not the case in the current litigation. The current litigation is seeking class certification for everyone that has paid for licenses on public works.
The article additionally ignores a number of heads of liability which are claimed in the pleading (consumer protection, unjust enrichment).
It's notable that fraud or fraudulent misrepresentation isn't claimed directly. I expect they might amend to add that as a fall back once they get better counsel. Instead they've claimed it's a RICO violation for a pattern of fraud amounting to racketeering. Ambitious big dollar claim, likely hoping to ratchet up a settlement amount but it's not clear it'll work out. They're currently represented by a personal injury lawyer who doesn't seem to have much background in the field, and I believe they've left off direct fraud claims due to the cost implications (I don't know know the RoP in the jurisdiction so the cost note is speculation on my part).
The previous case had standing as an issue because the individual in question was not hurt by the specific alleged fraud. This is not the case in the current litigation. The current litigation is seeking class certification for everyone that has paid for licenses on public works.
The article additionally ignores a number of heads of liability which are claimed in the pleading (consumer protection, unjust enrichment).
It's notable that fraud or fraudulent misrepresentation isn't claimed directly. I expect they might amend to add that as a fall back once they get better counsel. Instead they've claimed it's a RICO violation for a pattern of fraud amounting to racketeering. Ambitious big dollar claim, likely hoping to ratchet up a settlement amount but it's not clear it'll work out. They're currently represented by a personal injury lawyer who doesn't seem to have much background in the field, and I believe they've left off direct fraud claims due to the cost implications (I don't know know the RoP in the jurisdiction so the cost note is speculation on my part).
Fortunately many states have unfair and deceptive trade practices acts that provides standing, attorneys fees, actual and exemplary/punitive damages. Here is a somewhat dated pdf of each state's UDAP laws https://www.nclc.org/images/pdf/udap/analysis-state-summarie...
That's right. While you can sell a public domain image, you cannot claim that you own the copyright for it.
What about transformative works?
Disney was built on public domain stories after all.
Disney was built on public domain stories after all.
Ooh, ooh I got this one. Identifying and acquiring compelling public domain motion picture works and then creating copyright-eligible derivative works is my full-time job.
A derivative work is a work based on or derived from one or more already existing works. Common examples include translations, musical arrangements, motion picture versions of literary material or plays, art reproductions, abridgments, and condensations of preexisting works. Another common type of derivative work is a “new edition” of a preexisting work in which the editorial revisions, annotations, elaborations, or other modifications represent, as a whole, an original work.
To be copyrightable, a derivative work must incorporate some or all of a preexisting “work” and add new original copyright-eligible authorship to that work.
The copyright in a derivative work covers ONLY the additions, changes, or other new material appearing for the first time in the work. Protection does not extend to any preexisting material, that is, previously published or previously registered works or works in the public domain or owned by a third party. As a result, it is not possible to extend the length of protection for a copyrighted work by creating a derivative work. A work that is, or has fallen into the public domain, that is, a work that was never or is no longer protected by copyright, is also an underlying “work” from which derivative authorship may be added, but the copyright in the derivative work will not extend to the public domain material, and the use of the public domain material in a derivative work will not prevent anyone else from using the same public domain work for another derivative work.
A derivative work is a work based on or derived from one or more already existing works. Common examples include translations, musical arrangements, motion picture versions of literary material or plays, art reproductions, abridgments, and condensations of preexisting works. Another common type of derivative work is a “new edition” of a preexisting work in which the editorial revisions, annotations, elaborations, or other modifications represent, as a whole, an original work.
To be copyrightable, a derivative work must incorporate some or all of a preexisting “work” and add new original copyright-eligible authorship to that work.
The copyright in a derivative work covers ONLY the additions, changes, or other new material appearing for the first time in the work. Protection does not extend to any preexisting material, that is, previously published or previously registered works or works in the public domain or owned by a third party. As a result, it is not possible to extend the length of protection for a copyrighted work by creating a derivative work. A work that is, or has fallen into the public domain, that is, a work that was never or is no longer protected by copyright, is also an underlying “work” from which derivative authorship may be added, but the copyright in the derivative work will not extend to the public domain material, and the use of the public domain material in a derivative work will not prevent anyone else from using the same public domain work for another derivative work.
agree that this is a sleazy business practice, but (and not mentioned here, also, not a laywyer but), in music for example, there are typically 'artistic' rights and 'mechanical' rights - e.g. BMG can have the right to duplicate the recording of your song but not to record someone else performing it, or vice-versa where they cannot reproduce your recording but can record others performing it.
There are also nebulous cases involving sampling - some decided in favor of the one sampling, the others decided in favor of those who were sampled, depending on the particulars of the case / district / judge, etc.
I would suspect that getty is taking the public domain image, tweaking the file slightly (perhaps even in non-image related metadata), and thus creating a 'new work' to which they can make some sort of claim about.
so, while i think you are correct in that the 'visual image' (e.g. the visual object representation) is entirely in the public domain, the 'image' (e.g. the actual file) that they actually distribute is not, because they have modified it somehow and 'added value', etc etc etc. then, enforcement just becomes a fishing expedition. if you did your homework and used the public domain one and can refer to it, they don't press. if you didn't, and don't catch it, they have a reasonable claim/plausible deniability of mis-attribution, and you pay. easy (but unethical) money to them.
shady, dubious, etc, but probably not out-and-out fraud in the 'illegal' sense. still not good otherwise because it does facillitate them gaining market share (by having a bigger product base / collection) which in turn creates a cyclical effect/ barriers to entry/ etc (just like BMI/ASCAP and music, for example)
There are also nebulous cases involving sampling - some decided in favor of the one sampling, the others decided in favor of those who were sampled, depending on the particulars of the case / district / judge, etc.
I would suspect that getty is taking the public domain image, tweaking the file slightly (perhaps even in non-image related metadata), and thus creating a 'new work' to which they can make some sort of claim about.
so, while i think you are correct in that the 'visual image' (e.g. the visual object representation) is entirely in the public domain, the 'image' (e.g. the actual file) that they actually distribute is not, because they have modified it somehow and 'added value', etc etc etc. then, enforcement just becomes a fishing expedition. if you did your homework and used the public domain one and can refer to it, they don't press. if you didn't, and don't catch it, they have a reasonable claim/plausible deniability of mis-attribution, and you pay. easy (but unethical) money to them.
shady, dubious, etc, but probably not out-and-out fraud in the 'illegal' sense. still not good otherwise because it does facillitate them gaining market share (by having a bigger product base / collection) which in turn creates a cyclical effect/ barriers to entry/ etc (just like BMI/ASCAP and music, for example)
Fun fact: in music, anyone can avail themselves of a compulsory mechanical license to record someone else's already-recorded song. As the songwriter, you only have a right to specify who may release the first recording. This is how cover songs can exist with minimal effort of rights acquisition.
I wonder what the IP world would be like if this model, or some variation, were more widely applied?
I wonder what the IP world would be like if this model, or some variation, were more widely applied?
Copyright is not so easy to gain.
Sampling is at least nominally a creative act, where changing the resolution for example is not. You can gain copyright for a collection of say “Dog Photos” collected from public works. But, you don’t gain anything over individual photos in that collection only over that specific listing.
Sampling is at least nominally a creative act, where changing the resolution for example is not. You can gain copyright for a collection of say “Dog Photos” collected from public works. But, you don’t gain anything over individual photos in that collection only over that specific listing.
I agree, it is thankfully somewhat difficult. One thing the US Copyright office pointed out to me on a request a number of years ago was that any changes need to be themselves copyrightable to have any influence on the status of the final work. Little snippets of text/titles are for the moment still not copyrightable, changing hue or saturation etc would probably not pass the smell test, nor would any batch processing, purely technical changes like resolution or file type, etc. Unfortunately the larger players with standing are unlikely to push for these rulings so it is hard to find established case law.
While probably not relevant here, collections of public domain images can be copyrighted apparently: https://fairuse.stanford.edu/overview/public-domain/welcome/
That's interesting, but it makes sense. You're not copyrighting the images but the manner they were collected together.
People in this thread keep claiming that because it is public domain, they can do whatever they want with it including license it, which is not true. They can certainly sell it, but a license is a legal instrument that grants usage rights, and Getty cannot grant such rights. To claim to do so is fraud.
Is that settled in a court of law?
It isn't at all obvious to me that is the case.
The linked article explicitly disagrees with that interpretation - because Getty doesn't make any claim what the license is: Getty and/or Getty US offers to let the user “Purchase a license” to a NASA photo of Saturn for $499.00 with “standard editorial rights”
Techdirt makes the point: it can't sell "copyright licenses," as that is a misrepresentation over the rights that Getty Images has -- but if it wants to try to get people to pay for stuff that is otherwise available for free, that's Getty's prerogative. and that seems a reasonable interpretation.
Indeed and other interpretation would imply some kind of negative copyright exists over the work (because it is restricting what you can do with it), and elsewhere in this thread it is pointed out that there is precedent for avoiding that[1]
Is that settled in a court of law?
It isn't at all obvious to me that is the case.
The linked article explicitly disagrees with that interpretation - because Getty doesn't make any claim what the license is: Getty and/or Getty US offers to let the user “Purchase a license” to a NASA photo of Saturn for $499.00 with “standard editorial rights”
Techdirt makes the point: it can't sell "copyright licenses," as that is a misrepresentation over the rights that Getty Images has -- but if it wants to try to get people to pay for stuff that is otherwise available for free, that's Getty's prerogative. and that seems a reasonable interpretation.
Indeed and other interpretation would imply some kind of negative copyright exists over the work (because it is restricting what you can do with it), and elsewhere in this thread it is pointed out that there is precedent for avoiding that[1]
Adobe also claims that Fonts are Software. Because most Fonts wouldn't be copyrightable beyond the Name of the Font because they lack innovation. Software, on the other hand, doesn't require innovation.
I don't see how this is relevant.
Shouldn't the letter forms in the font be copyrightable? How are those different from a (copywritable) drawing?
Not everything is copyrightable. You certainly can't draw a circle and claim copyright infringement to any other circle.
So it depends on the Font. Is it really copyrightable if you take a public domain typewriter font and convert it to a sans serif font. I don't think it is enough.
Most (good) fonts—even seemingly simple ones—take months if not years of work to build. I don't think your circle comparison is apt.
> Is that settled in a court of law?
Yes, of course.
As said a licence is what the owner of some exclusive rights issues to grant someone else some of those rights.
Yes, of course.
As said a licence is what the owner of some exclusive rights issues to grant someone else some of those rights.
So can you point at the precedent, please?
> Yes, of course.
In a particular test case?
The whole article is all about how this layman's intuition about the licensing situation in this case is not how you'd think.
> These images are in the public domain. No one is required to pay Getty and/or Getty US a penny to copy and use them. And Getty has no right to sell copyright licenses for them, as it has done and is doing.
> The first sentence is true, the second, not so much.
What do you know that the author doesn't? Is there a particular test case that settled it?
In a particular test case?
The whole article is all about how this layman's intuition about the licensing situation in this case is not how you'd think.
> These images are in the public domain. No one is required to pay Getty and/or Getty US a penny to copy and use them. And Getty has no right to sell copyright licenses for them, as it has done and is doing.
> The first sentence is true, the second, not so much.
What do you know that the author doesn't? Is there a particular test case that settled it?
There doesn't need to be a test case, because it's written in the law. A license is defined as a "transfer of rights", you can't transfer rights that you don't have.
But that's exactly what the article is saying isn't as intuitive as you think it is.
> it's not at all clear that it's against the law
> it's not at all clear that it's against the law
The author (what's his authority, by the way?) agrees, though:
> Well, it can't sell "copyright licenses," as that is a misrepresentation over the rights that Getty Images has -- but if it wants to try to get people to pay for stuff that is otherwise available for free, that's Getty's prerogative.
His point is that he does not think that Getty was selling licences. However Getty's past behaviour (and I'm sure their own website since I'm sure that the T&C and the licence are attached to any sale) suggests that this is exactly what they were doing:
> The first one was brought by photographer Carol Highsmith, who sued Getty after Getty had sent a demand letter to her over her own images, which she had donated to the Library of Congress to be put into the public domain.
And yes, knowingly selling licences for rights you do not have is against the law. If you think it's not then I'm happy to sell you a licence to fish in the River Dee...
> Well, it can't sell "copyright licenses," as that is a misrepresentation over the rights that Getty Images has -- but if it wants to try to get people to pay for stuff that is otherwise available for free, that's Getty's prerogative.
His point is that he does not think that Getty was selling licences. However Getty's past behaviour (and I'm sure their own website since I'm sure that the T&C and the licence are attached to any sale) suggests that this is exactly what they were doing:
> The first one was brought by photographer Carol Highsmith, who sued Getty after Getty had sent a demand letter to her over her own images, which she had donated to the Library of Congress to be put into the public domain.
And yes, knowingly selling licences for rights you do not have is against the law. If you think it's not then I'm happy to sell you a licence to fish in the River Dee...
[deleted]
Count me as another "stop being so dismissive of these lawsuits, there's a plausible claim here" voice. Claiming some kind of ownership right in public domain images, and hence implicitly or explicitly representing to people that if they use those images without paying they can get sued, seems like straightforward fraud.
It's no different than if I set up a toll booth on a public sidewalk, with a big official-looking sign saying "I own this sidewalk, and you have to pay me a dollar to walk down it." People who reasonably believe my misrepresentations as to my ownership of the sidewalk and give me money have at least pretty plausible good old-fashioned fraud claims.
The argument of the linked article, transposed to the sidewalk toll booth context, seems to roughly be "Getty didn't put up a sign saying they OWNED the sidewalk, they put up a sign saying 'License for sale to this sidewalk which we have the rights to sell licenses to' and the silly plaintiffs shouldn't have read it like a normal person to be a claim of ownership; instead they'd should have read it in the unnatural way that Getty wanted to trick them into not reading it as." Or, in tort lawyer language, as the claim that their reliance on Getty's claim of ownership wasn't justified. Well, this sounds like a jury question to me.
It's no different than if I set up a toll booth on a public sidewalk, with a big official-looking sign saying "I own this sidewalk, and you have to pay me a dollar to walk down it." People who reasonably believe my misrepresentations as to my ownership of the sidewalk and give me money have at least pretty plausible good old-fashioned fraud claims.
The argument of the linked article, transposed to the sidewalk toll booth context, seems to roughly be "Getty didn't put up a sign saying they OWNED the sidewalk, they put up a sign saying 'License for sale to this sidewalk which we have the rights to sell licenses to' and the silly plaintiffs shouldn't have read it like a normal person to be a claim of ownership; instead they'd should have read it in the unnatural way that Getty wanted to trick them into not reading it as." Or, in tort lawyer language, as the claim that their reliance on Getty's claim of ownership wasn't justified. Well, this sounds like a jury question to me.
As far as I can tell, if they took a public domain image, modified it in some way, and sold that on their site, it would be copyright them. They could sue you for using it or whatever they wanted.
What would count as modified, I don't know. E.g. Maybe they put real man hours in on Photoshop to remove some artifact and to correct the color. I don't think anyone would argue they shouldn't deserve to be paid. But if all they did was crop it, resize it or even just compressing it as a JPEG they might be fine in legal terms.
What would count as modified, I don't know. E.g. Maybe they put real man hours in on Photoshop to remove some artifact and to correct the color. I don't think anyone would argue they shouldn't deserve to be paid. But if all they did was crop it, resize it or even just compressing it as a JPEG they might be fine in legal terms.
If the law is on Getty's side, the law should be changed. Selling public domain content should be illegal if it's a digital work, as opposed to a printed book. At the very least, it should be required that it's clearly labeled as public domain.
Disagree a bit: selling public domain content is OK, as long as you don't mislead the customer and claim that you own the copyright. It's essential that the customer knows what he or she is buying (for instance, the actual value is in finding the relevant PD content).
Nobody disagrees that you can of course ask for a delivery/handling/whatever bullshit fee.
But the law should require that you mark that as such and that you must make it known that it is not a fee on the photo. Additionally it should be required that if you are providing access to photos for a fee, you need to let the buyer know it's public domain.
But the law should require that you mark that as such and that you must make it known that it is not a fee on the photo. Additionally it should be required that if you are providing access to photos for a fee, you need to let the buyer know it's public domain.
The problem seems to be that while it is deceptive and probably illegal to imply you have a copyright over a public domain image, the company who is suing doesn't have the "standing" to sue. Instead that is the responsibility of the FTC or an Attorney General. Although it seems unfortunate because those institutions have limited resources and/or might be captured and not willing to pursue such cases.
But this is not the case when the company suing has actually been induced by the fraud to purchase images. Then they have knock-down standing, because they have an individualized legally cognizable injury.
I don’t have any legal expertise. The article just made it seem like they wouldn’t win the case because of that reason.
No personal criticism meant! The article is badly written to suggest the standing problem is general when it's really a problem only for plaintiffs who haven't actually lost money on the scam. (One is the many flaws with the article...)
See also:
https://www.journals.uchicago.edu/doi/abs/10.1086/694241?jou...
Understanding Copyfraud: Public Domain Images and False Claims of Copyright by Chris Needham
Copyright fraud or copyfraud—when museums misrepresent or restrict rights in ways that go against public domain copyright law—continues to be a widespread practice even in the years following the 1999 Bridgeman Art Library, LTD. v. Corel Corp. court case. To help clarify this situation, the author first reviews the relevant copyright issues, then considers some of the problems that copyfraud creates in universities, publishing houses, and museums. In conclusion, he explores the ways museums, supported by their librarians and visual resources managers, have recently changed their approach to copyright and copyfraud, and the ways in which this is transforming scholarship and allowing scholars and librarians to better serve the public.
[However that article IS copyrighted and paywalled at that URL. doi: 10.1086/694241 ]
https://www.journals.uchicago.edu/doi/abs/10.1086/694241?jou...
Understanding Copyfraud: Public Domain Images and False Claims of Copyright by Chris Needham
Copyright fraud or copyfraud—when museums misrepresent or restrict rights in ways that go against public domain copyright law—continues to be a widespread practice even in the years following the 1999 Bridgeman Art Library, LTD. v. Corel Corp. court case. To help clarify this situation, the author first reviews the relevant copyright issues, then considers some of the problems that copyfraud creates in universities, publishing houses, and museums. In conclusion, he explores the ways museums, supported by their librarians and visual resources managers, have recently changed their approach to copyright and copyfraud, and the ways in which this is transforming scholarship and allowing scholars and librarians to better serve the public.
[However that article IS copyrighted and paywalled at that URL. doi: 10.1086/694241 ]
I had to stop releasing music under creative commons because I noticed copyright trolls were trying to claim it was there's when some tried to use it as music in their youtube videos.
The whole point of releasing under creative commons is so the exact opposite thing happens.
I hate these guys so much. Give me back full functionality in Google image search.
considering banks during the financial-crisis got away without even a penalty, forget prison time, for automating foreclosures on people's homes that the bank didn't actually own or weren't behind on the mortgage, I suspect this crime-via-automation will also not be punished
This is sleazy how? Getty has done the work of looking at images and screening them and putting them in a catalog. No more sleazy than Red Hat or Canonical selling support for software it didn’t write. If people want free public domain images, they can search for them. Only problem is, that’s work! Getty did it for you.
They are claiming copyright on the works something they don't own - even if you put something into the public domain you still can claim copyright - Getty can't go around licensing your copyright to others without your permission, much less demanding money because they claim that they own it.
What they can do is resell things in the public domain, what they can't do is shake people down for licensing fees
What they can do is resell things in the public domain, what they can't do is shake people down for licensing fees
[deleted]
> The first one was brought by photographer Carol Highsmith, who sued Getty after Getty had sent a demand letter to her over her own images, which she had donated to the Library of Congress to be put into the public domain.
This is not sleazy? It's in the first paragraph, nearly the first sentence. They sent a demand letter to the one that actually took theses photographs.
This is not sleazy? It's in the first paragraph, nearly the first sentence. They sent a demand letter to the one that actually took theses photographs.
This isn't true.
There are sites that have public domain images and google has easy to use tools that sort images by licensing types. I make art and when I do need a reference picture, I use these tools. Most folks can do these things easily.
What Getty images does is sleazy because it makes it so that some of the tools available won't show a picture. Getty is charging for it and licensing it. This is different than them doing the work - they are taking it away.
There are sites that have public domain images and google has easy to use tools that sort images by licensing types. I make art and when I do need a reference picture, I use these tools. Most folks can do these things easily.
What Getty images does is sleazy because it makes it so that some of the tools available won't show a picture. Getty is charging for it and licensing it. This is different than them doing the work - they are taking it away.
They can make them available through a paid portal, exactly like Red Hat or Canonical does with updates. But they can't license something that they does not own. Specially when they mix those images with others that they own and which they can sue you for large sums of money if you use them without license.
I can use CentOS workout pay dime to Red Hat.
* typo
I can use CentOS workout pay dime to Red Hat.
* typo
No more sleazy than a beverage company taking free public tap water in mass and reselling it to the public...and serving threatening cease and desist letters for anyone who attempts to drink the public tap water for free alleging they don’t have such rights because the public tap water is owned by said company.
If RH/Canonical started attacking other distros and claiming that they owned the Linux kernel, they would (rightly) get smacked down as well.
The allegation is that they licensed public domain images, which is something obviously unlawful (and likely criminal if done knowingly) since they do not own the rights of a public domain image by definition.
If it is indeed work to find and catalogue those images then they are allowed to charge for access to that catalogue. But a public domain image cannot be licensed.
If it is indeed work to find and catalogue those images then they are allowed to charge for access to that catalogue. But a public domain image cannot be licensed.
This is really a job for the legislature, not the courts. We all have an intuitive sense that something about Getty's behavior is morally wrong. But what is wrong about it isn't very well-defined. Creating those legal definitions is a big part of the legislature's job.
I don’t have that intuitive sense. Other than believing copyright is wrong and that is ther biz model.
The legislature has already ruled. They have defined public domain. They (and everyone who knows copyright law) understands you can do anything with public domain. Including selling, licencensing. As the OA correctly state several times. Only the clickbait title implies otherwise.
Fraud has also been apropriately legislated.
The legislature has already ruled. They have defined public domain. They (and everyone who knows copyright law) understands you can do anything with public domain. Including selling, licencensing. As the OA correctly state several times. Only the clickbait title implies otherwise.
Fraud has also been apropriately legislated.
> The legislature has already ruled.
So? It's not like law is a "define it once and never adjust or iterate it" kind of deal. A law is not correct just because it has already been defined and applied. That would be the moral equivalent to circular reasoning, and by that logic we should still stone people for taking the Lord's name in vain and in general go eye for an eye on each other.
So? It's not like law is a "define it once and never adjust or iterate it" kind of deal. A law is not correct just because it has already been defined and applied. That would be the moral equivalent to circular reasoning, and by that logic we should still stone people for taking the Lord's name in vain and in general go eye for an eye on each other.
> in general go eye for an eye on each other
Note the original “eye for eye” statute was setting a judicial penalty limit, not giving people license to brutal personal retaliation.
This was important in legal history because ancient justice prior to that tended to severely over-penalize criminal violence. “Eye for eye” would have read “if a person gouges out another person’s eye, the penalty is (only) that their own eye should be gouged out” —- which would have seemed very lenient given the existing legal climate in the ancient near-east.
Note the original “eye for eye” statute was setting a judicial penalty limit, not giving people license to brutal personal retaliation.
This was important in legal history because ancient justice prior to that tended to severely over-penalize criminal violence. “Eye for eye” would have read “if a person gouges out another person’s eye, the penalty is (only) that their own eye should be gouged out” —- which would have seemed very lenient given the existing legal climate in the ancient near-east.
Selling a work is one thing but fradulently claiming that you own the copyright for it or that nobody can use it without your license is another thing.
Isn't it just Fake Invoice Fraud? Doesn't seem to be that much trouble charging less corporate perpetrators:
https://www.experian.co.uk/blogs/latest-thinking/identity-an...
https://www.experian.co.uk/blogs/latest-thinking/identity-an...
Fake Invoice Fraud isn't a legal category, but fraud is.
It's currently possible, legally, for Getty to license public domain images as long as they don't make a false written representation that the images are their own. If Getty grants some usage permissions on paper to public domain works, that may constitute legal nonsense, but it's not fraud. Note it could be argued that such a license, or the purchase arrangements alongside it, contain false implied representations constituting fraud, but it'll be next to impossible to pin them on that without targeted legislation or existing judicial precedent (which I don't think currently exists).
The thing is, people sign contracts and purchase licenses every day that contain non-enforceable legal nonsense (like a non-compete clause on an employment contract in California). It's very hard to legally define legal nonsense, thus it's likely impossible to stamp out altogether. The best we can do is outlaw specific types of legal nonsense, like licenses granting permissions on public domain works.
It's currently possible, legally, for Getty to license public domain images as long as they don't make a false written representation that the images are their own. If Getty grants some usage permissions on paper to public domain works, that may constitute legal nonsense, but it's not fraud. Note it could be argued that such a license, or the purchase arrangements alongside it, contain false implied representations constituting fraud, but it'll be next to impossible to pin them on that without targeted legislation or existing judicial precedent (which I don't think currently exists).
The thing is, people sign contracts and purchase licenses every day that contain non-enforceable legal nonsense (like a non-compete clause on an employment contract in California). It's very hard to legally define legal nonsense, thus it's likely impossible to stamp out altogether. The best we can do is outlaw specific types of legal nonsense, like licenses granting permissions on public domain works.
[deleted]
Getty has a model of convincing people to buy images available for free.
There's no crime, or damages, in ripping people off.
If Getty sues you for thinking you didn't have their license for an image in public domain, that'll be funny. But thats not currently what they are doing, and when their processes gets to that part of the funnel on occasion, their human lawyer looks at it and decides not to do anything.
There's no crime, or damages, in ripping people off.
If Getty sues you for thinking you didn't have their license for an image in public domain, that'll be funny. But thats not currently what they are doing, and when their processes gets to that part of the funnel on occasion, their human lawyer looks at it and decides not to do anything.
Why doesn't it count as fraud? It's misrepresenting the truth in the context of a business transaction for your monetary gain and their monetary loss.
Is the deal that Getty doesn't know for sure that they don't own the rights, and therefore it doesn't legally count as deliberate / knowing deception?
Or is it that Getty says "You can buy a license from us" but does not say "We own the copyright for this" or "We are the exclusive licensors of the copyright for this," so they're not actually lying?
Is the deal that Getty doesn't know for sure that they don't own the rights, and therefore it doesn't legally count as deliberate / knowing deception?
Or is it that Getty says "You can buy a license from us" but does not say "We own the copyright for this" or "We are the exclusive licensors of the copyright for this," so they're not actually lying?
Perhaps legislation needs to be in place to force the various Getty's of the country, to clearly mention the source of the "free content" that Getty (and others sell). So when you use the Getty search system for 'space photos' and a nice NASA photo pops up, Getty would be obliged to have a URL of the original (and freely accessible) photo location. Then the 'Gettys' will feel the pain of running a search engine/maintaining a library with the high possibility that it won't yield scammy profit.
It's not fraud when no sale took place. The problem with trying to civilly go after attempted fraud is having no standing, because you've suffered no harm.
As long as Getty simply refunds whomever complains, they can close off 90% of the avenues of legal attack.
As long as Getty simply refunds whomever complains, they can close off 90% of the avenues of legal attack.
IMO it gets really murky if you create derived works from public domain content. I think people should be able to license derived works (provided they don't infringe on trademarks etc).
If Getty just fails to disclose that the (unmodified?) image is public domain, that strikes me as dishonest.
> Is the deal that Getty doesn't know for sure that they don't own the rights, and therefore it doesn't legally count as deliberate / knowing deception?
It may or may not be fraud but their business is predicated on not merely delivering but establishing provenance for this kind of content. Whoever added the content to the catalog definitely knew where it came from.
If Getty just fails to disclose that the (unmodified?) image is public domain, that strikes me as dishonest.
> Is the deal that Getty doesn't know for sure that they don't own the rights, and therefore it doesn't legally count as deliberate / knowing deception?
It may or may not be fraud but their business is predicated on not merely delivering but establishing provenance for this kind of content. Whoever added the content to the catalog definitely knew where it came from.
Yeah, Getty is selling photos that are public domain. Photos in the public domain are already free to use, though some people might pay to have peace of mind that they didn't take a similar, not-public domain work by mistake or something.
There's no peace of mind, just because you paid for it. I can sell you the rights to a photo I don't own, and the original copyright holder can go after you for infringement.
IANAL but I'm pretty sure Getty is guaranteeing you won't get sued
From their license
> Warranty of Non-Infringement. For all licensed content (excluding content marked “access only”), Getty Images warrants that your use of such content in accordance with this agreement and in the form delivered by Getty Images (that is, excluding any modifications, overlays or re-focusing done by you) will not infringe on any copyrights or moral rights of the content owner/creator.
https://www.gettyimages.com/eula
Note, I have many photos CC-BY on Flickr. One company wanted to use an image I took in the Louvre and wanted me to sign a different license. I refused as their license required I indemnify them and I had no idea what the legality of that image is given it was taken inside the Louvre
From their license
> Warranty of Non-Infringement. For all licensed content (excluding content marked “access only”), Getty Images warrants that your use of such content in accordance with this agreement and in the form delivered by Getty Images (that is, excluding any modifications, overlays or re-focusing done by you) will not infringe on any copyrights or moral rights of the content owner/creator.
https://www.gettyimages.com/eula
Note, I have many photos CC-BY on Flickr. One company wanted to use an image I took in the Louvre and wanted me to sign a different license. I refused as their license required I indemnify them and I had no idea what the legality of that image is given it was taken inside the Louvre
That's what they say, but will they actually stand by this, if they discover they sold you an image they don't own?
For the same reason you are allowed to sell open source software.
Are you allowed to claim that the software you're selling is proprietary, owned and copyrighted by you and then go after people that obtained them from the source (or are the original creator of said software)? Because that appears to be what Getty is doing.
Most open source licenses have an attribution and license-preservation clause specifically so buyers know that the software contains things derived from OSS code. I can certainly sell you ReallyCoolSSL which is just a rebranding of OpenSSL, but you're going to see the OpenSSL license and then go wonder what OpenSSL is.
Works in the public domain do not have a license and therefore do not have this obligation to tell people what's going on.
Works in the public domain do not have a license and therefore do not have this obligation to tell people what's going on.
Open Source != Public Domain
> Why doesn't it count as fraud? It's misrepresenting the truth in the context of a business transaction for your monetary gain and their monetary loss.
They are selling "copyright licenses" to the gullible.
It has NEVER EVER EVER been on the consumer to know who has a license to sublicense and who doesn't.
The consumer gets to assume that Walmart has acquired all the licenses for everything it sells, and incurs no liability when Walmart doesn't.
The merchant gets to pay for access under any name they call it.
Nobody actually cares if Getty calls it a "copyright license" or "download a high res photo we found in exchange for money". What you ask for is a semantic change.
If anything, maybe the case goes to discovery process and answers the other questions you asked.
They are selling "copyright licenses" to the gullible.
It has NEVER EVER EVER been on the consumer to know who has a license to sublicense and who doesn't.
The consumer gets to assume that Walmart has acquired all the licenses for everything it sells, and incurs no liability when Walmart doesn't.
The merchant gets to pay for access under any name they call it.
Nobody actually cares if Getty calls it a "copyright license" or "download a high res photo we found in exchange for money". What you ask for is a semantic change.
If anything, maybe the case goes to discovery process and answers the other questions you asked.
> It has NEVER EVER EVER been on the consumer to know who has a license to sublicense and who doesn't.
Exactly, it's been on the seller. In your Walmart analogy, Getty is Walmart, and if it's selling licenses to things it doesn't have a right to sublicense, it's committing fraud, just as Walmart would be if it were selling things it didn't have the legal right to sell.
Getty's MO in defending against such suits thus far seems to be that, since the images are in the public domain, no one has standing to sue them, not even the people who originally created the images and put them in the public domain. That strikes me as a candidate for a new definition of chutzpah, to say the least.
Exactly, it's been on the seller. In your Walmart analogy, Getty is Walmart, and if it's selling licenses to things it doesn't have a right to sublicense, it's committing fraud, just as Walmart would be if it were selling things it didn't have the legal right to sell.
Getty's MO in defending against such suits thus far seems to be that, since the images are in the public domain, no one has standing to sue them, not even the people who originally created the images and put them in the public domain. That strikes me as a candidate for a new definition of chutzpah, to say the least.
> if it's selling licenses to things it doesn't have a right to sublicense, it's committing fraud
Except it's not (as per TFA). You have the right to license public domain images. Anyone does. The fact that nobody needs a license is completely beside the point. People buy things they don't need all the time. It might be fraud if you told people that they needed a licence. But it might not either -- it depends a lot on the situation (and IANAL).
Think about it this way. It would be stupid if I couldn't make a poster of a public domain image and sell it. That's the whole point of the public domain. You don't need to buy my poster -- you can make your own if you want. But I'm offering it to you for some money. It's just as stupid if I can't sell a download service for the same image on my website. You don't need to use the download service. You can get the image somewhere else. But I'm offering it to you for some money.
Just like Penguin Books can offer the complete works of Shakespeare and not tell you that you could have gotten them somewhere else for free, so too can you get an image from Getty, even though you can get that image for free somewhere else.
What's goofy is that they offer a license as well. It's strange, but there is nothing wrong with it. You download my picture and pay me $500 and I'll be completely happy if you make as many copies as you like of it. I'll even offer you a license for my happiness. Goofy, yes, but illegal, no.
What might be illegal is if they said that you can't make a copy of this image without their license. However, I don't believe that they say this, so it's a moot point.
Except it's not (as per TFA). You have the right to license public domain images. Anyone does. The fact that nobody needs a license is completely beside the point. People buy things they don't need all the time. It might be fraud if you told people that they needed a licence. But it might not either -- it depends a lot on the situation (and IANAL).
Think about it this way. It would be stupid if I couldn't make a poster of a public domain image and sell it. That's the whole point of the public domain. You don't need to buy my poster -- you can make your own if you want. But I'm offering it to you for some money. It's just as stupid if I can't sell a download service for the same image on my website. You don't need to use the download service. You can get the image somewhere else. But I'm offering it to you for some money.
Just like Penguin Books can offer the complete works of Shakespeare and not tell you that you could have gotten them somewhere else for free, so too can you get an image from Getty, even though you can get that image for free somewhere else.
What's goofy is that they offer a license as well. It's strange, but there is nothing wrong with it. You download my picture and pay me $500 and I'll be completely happy if you make as many copies as you like of it. I'll even offer you a license for my happiness. Goofy, yes, but illegal, no.
What might be illegal is if they said that you can't make a copy of this image without their license. However, I don't believe that they say this, so it's a moot point.
> You have the right to license public domain images. Anyone does.
Huh? If it's in the public domain, you don't own it, because nobody owns it. And if you don't own it, and don't have permission to sublicense from the owner (which you can't since there is no owner), how can you have the right to license it?
I agree that you have the right to sell public domain content, if you can convince anyone to buy it (and apparently lots of people can indeed be so convinced). But I don't think anyone has the right to license public domain content.
> What might be illegal is if they said that you can't make a copy of this image without their license. However, I don't believe that they say this
From what I can gather, they have sent demand letters to people who originally created public domain content they claim to license, telling those people that they can't use the content on their website.
Huh? If it's in the public domain, you don't own it, because nobody owns it. And if you don't own it, and don't have permission to sublicense from the owner (which you can't since there is no owner), how can you have the right to license it?
I agree that you have the right to sell public domain content, if you can convince anyone to buy it (and apparently lots of people can indeed be so convinced). But I don't think anyone has the right to license public domain content.
> What might be illegal is if they said that you can't make a copy of this image without their license. However, I don't believe that they say this
From what I can gather, they have sent demand letters to people who originally created public domain content they claim to license, telling those people that they can't use the content on their website.
In copyright law, nobody owns the text. What you own is the right to make a copy. If you have a copyright, it is an exclusive right to make a copy. You can sell a license for someone else to make a copy.
If the text is in the public domain, you also have the right to make a copy. You do not have an exclusive right. You can sell the right to make a copy, just like you can sell the right to jump up and down. Nobody needs that right because they already have it, but nothing is stopping you from selling it.
Remember that in all "intellectual property", the "property" is a right, not the thing itself.
If the text is in the public domain, you also have the right to make a copy. You do not have an exclusive right. You can sell the right to make a copy, just like you can sell the right to jump up and down. Nobody needs that right because they already have it, but nothing is stopping you from selling it.
Remember that in all "intellectual property", the "property" is a right, not the thing itself.
> The consumer gets to assume that Walmart has acquired all the licenses for everything it sells, and incurs no liability when Walmart doesn't.
If you buy some Disney-branded stuff from Walmart and re-sell them, Disney will come after you if they aren't licensed. You can then go after Walmart to reimburse you for damages, but you can't say "sorry, Disney, I got these from Walmart, take it up with them", can you? It would be way to easy to set up a shell company that takes the fall if that was true.
If you buy some Disney-branded stuff from Walmart and re-sell them, Disney will come after you if they aren't licensed. You can then go after Walmart to reimburse you for damages, but you can't say "sorry, Disney, I got these from Walmart, take it up with them", can you? It would be way to easy to set up a shell company that takes the fall if that was true.
You can make as many legal excuses like that as you can afford to stall about in court.
Walmart has more lawyers than you.
Walmart has more lawyers than you.
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EEVblog and CodysLab come to mind on an unrelated but annoying scam that YouTube hasn't addressed sufficiently. Shouldn't there be a class-action against YouTube for the scammy gambit of allowing random people to claim content ID of works they don't own and then attack the original creators? This scam alone threatens to kick thousands of legitimate content creators off while enriching shady corporations and outright criminals. It seems like the only way to get YT to get their act together regarding measurably improving "who owns what."
> It seems like the only way to get YT to get their act together regarding measurably improving "who owns what."
The problem is fundamentally that this isn't really possible. What you have is one person claiming they have a right to use something and another claiming they don't.
To know who is right you need to know who created the work, who they licensed it to under what terms, whether the copyright has expired, etc. YouTube has none of that information, nor any reasonable way to obtain it. They're not a court.
But they do have a bunch of large media companies who like to sue them over anything they can, wanting them to solve this by magic. So their choice is to either screw over their users or defend them in court. One of those is much less expensive.
The alternative would be to fix the law to put the dispute between the user and the claimant into court to begin with and only come to the intermediary once the matter has been adjudicated. The media companies hate that, because it's slower and more expensive than immediately screwing over the users with no effective recourse, but it's what would be necessary for accurate/equitable determinations.
The problem is fundamentally that this isn't really possible. What you have is one person claiming they have a right to use something and another claiming they don't.
To know who is right you need to know who created the work, who they licensed it to under what terms, whether the copyright has expired, etc. YouTube has none of that information, nor any reasonable way to obtain it. They're not a court.
But they do have a bunch of large media companies who like to sue them over anything they can, wanting them to solve this by magic. So their choice is to either screw over their users or defend them in court. One of those is much less expensive.
The alternative would be to fix the law to put the dispute between the user and the claimant into court to begin with and only come to the intermediary once the matter has been adjudicated. The media companies hate that, because it's slower and more expensive than immediately screwing over the users with no effective recourse, but it's what would be necessary for accurate/equitable determinations.
There are plenty of options for the law to fix this.
They could make it illegal or costly to make a false claim based on copyright. Content ID include the world "copyrighted content was found in your video", so just here we could make a first change to the law.
We could also make it illegal to disrupt someones income on advertisement through the means of copyright claim that negligent ignores fair use. You take a judge and have them look at those cases and allow the judge to fine obvious false claims. This create liability which trickle down.
You could create regulations that demand content provider to compensate lost income from false content id or they loose safe harbor protection. This would encourage YT to demand a deposit when a claim is made, and give this deposit to the accused if the claim is challenged.
All this without demanding that YT itself know if the claim is correct or not.
They could make it illegal or costly to make a false claim based on copyright. Content ID include the world "copyrighted content was found in your video", so just here we could make a first change to the law.
We could also make it illegal to disrupt someones income on advertisement through the means of copyright claim that negligent ignores fair use. You take a judge and have them look at those cases and allow the judge to fine obvious false claims. This create liability which trickle down.
You could create regulations that demand content provider to compensate lost income from false content id or they loose safe harbor protection. This would encourage YT to demand a deposit when a claim is made, and give this deposit to the accused if the claim is challenged.
All this without demanding that YT itself know if the claim is correct or not.
> They could make it illegal or costly to make a false claim based on copyright. Content ID include the world "copyrighted content was found in your video", so just here we could make a first change to the law.
You're not actually solving the underlying problem. So you make filing a false claim illegal -- great, that would legitimately be an improvement over the status quo. We should do that. It would reduce the number of fraudulent claims somewhat.
So after we do that and someone says that a claim is false, what happens then? You still need to adjudicate who is right, so you still need a court. Which means most of the time the victim won't have the resources to enforce it.
What really matters here is the default. What happens when neither party will spend the resources to initiate litigation? Because whatever happens then is what will happen in 99% of cases.
You're not actually solving the underlying problem. So you make filing a false claim illegal -- great, that would legitimately be an improvement over the status quo. We should do that. It would reduce the number of fraudulent claims somewhat.
So after we do that and someone says that a claim is false, what happens then? You still need to adjudicate who is right, so you still need a court. Which means most of the time the victim won't have the resources to enforce it.
What really matters here is the default. What happens when neither party will spend the resources to initiate litigation? Because whatever happens then is what will happen in 99% of cases.
They could simply require the dmca process be used instead and not even get into the middle of it.
Or at least follow the spirit of the DMCA process and allow users to say “no, that’s an invalid claim and I am willing to risk being sued”
The problem with the DMCA safe harbor is that it's just a safe harbor, so the incentive to follow either side of it is limited by the degree of liability one would have to the party against whom it protects you from liability. The takedown process protects you from the purported content owner, who has potentially significant copyright claims against you. The restoration process protects you from the end-user, who you probably have no liability to, because you've written your contract with them to allow you to take anything down for any reason anyway.
The only way a safe harbor would not favor media corps is:
(1) if liability that could not be removed by contract/user-agreement terms existed for a “bad” takedown, or
(2) if it were a non-takedown safe harbor (e.g., instead of the DMCA safe harbor, extend the Section 230 safe harbor to include copyright claims.)
The only way a safe harbor would not favor media corps is:
(1) if liability that could not be removed by contract/user-agreement terms existed for a “bad” takedown, or
(2) if it were a non-takedown safe harbor (e.g., instead of the DMCA safe harbor, extend the Section 230 safe harbor to include copyright claims.)
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A class action for what reason?
Part of using YouTube as a revenue platform for your content is that you agree to terms that effectively let them boot you for any reason. "Other people fraudulently pretending you stole their content" is thus no different of a reason to kick you off than you liking the color blue, or you actually breaking a rule.
Now, if they punish you further by labeling you falsely as a content thief, then there's likely something you can take them to court over. But I don't know if that would be numerous enough to qualify for a class action.
Part of using YouTube as a revenue platform for your content is that you agree to terms that effectively let them boot you for any reason. "Other people fraudulently pretending you stole their content" is thus no different of a reason to kick you off than you liking the color blue, or you actually breaking a rule.
Now, if they punish you further by labeling you falsely as a content thief, then there's likely something you can take them to court over. But I don't know if that would be numerous enough to qualify for a class action.
EEVblog and CodysLab are scams?
Why haven't i heard about this? Do you have any source?
Why haven't i heard about this? Do you have any source?
No, the OP meant it the other way around. Both channels were copyright striked multiple times by trolls. Both Cody and Dave (eevblog) did multiple videos on it explaining the situation.
Should not the trolls sending fake copyright claims be held responsible then? This doesn't look very legal.
That is also true for patent trolls, but that doesn't stop them.
In the case of youtube the problem is that the strike is done by an automated system, and getting it fixed is a really frustrating experience because you can't talk to a human.
For those who rely on youtube for their income, these copyright strikes are a major concern and source of anxiety.
In the case of youtube the problem is that the strike is done by an automated system, and getting it fixed is a really frustrating experience because you can't talk to a human.
For those who rely on youtube for their income, these copyright strikes are a major concern and source of anxiety.
I cannot agree. The fault is on those who send fake takedown requests, not on Youtube. They should repay the profit that could be lost because of the takedown.
Not GP but they probably mean the opposite - other people are copying EEVBlog/CodysLab videos, and then copystriking them.
Yes... Media they've used, sometimes that they've created themselves or used that's clearly in the public domain, has been content ID'ed by others in an attempt to extort them. It's gotten to the point where on YT one basically has to have a pointless media channel to upload original music / video to content ID before using it in other videos.
Isn't it required to accompany public domain images with their original license?
Nope. Not even maybe.
The public domain is utterly free. As in free to do anything with. One reason Copyleft and Creative Commons licenses exist. And they require copyright. Because no one can control what is done with public domain.
In the USA at leasr
The public domain is utterly free. As in free to do anything with. One reason Copyleft and Creative Commons licenses exist. And they require copyright. Because no one can control what is done with public domain.
In the USA at leasr
Public domain isn't a licence. It means the work was authored by the US government or the copyright has expired. In either case the work is no longer subject to copyright at all.
> "CixxFive argues that it has standing to sue because it licensed some of these public domain images. But ... it's not clear how that's Getty's fault."
Surely intentionally misrepresenting the images as being wholly owned and copyrighted by Getty makes it their fault. They're deceiving the customer outright even if they're trying to be subtle about it. Behaving as if Getty is totally free of responsibility from this is just playing make-believe where we all pretend that nothing ethically reprehensible is happening.
Surely intentionally misrepresenting the images as being wholly owned and copyrighted by Getty makes it their fault. They're deceiving the customer outright even if they're trying to be subtle about it. Behaving as if Getty is totally free of responsibility from this is just playing make-believe where we all pretend that nothing ethically reprehensible is happening.
It seems pretty clear to me that they're talking about Getty's actual legal liability here, not making a moral judgment on whether what they're doing is wrong. In fact, two paragraphs later they say-
> I'm certainly sensitive to the slimy practices of Getty Images, and claiming that public domain images are available for license (at very high fees) is very slimy. But it's not at all clear that it's against the law.
> I'm certainly sensitive to the slimy practices of Getty Images, and claiming that public domain images are available for license (at very high fees) is very slimy. But it's not at all clear that it's against the law.
Well, at least they didn't license gif's and left our precious memes alone. Oh wait... GIF.com
https://www.lw.com/thoughtleadership/using-public-domain-con... mentions an interesting and potentially applicable precedent:
> Nonetheless, the U.S. Supreme Court’s ruling in Dastar Corporation v. Twentieth Century Fox Film Corporation24 greatly restricted the trademark claim of “reverse passing off”—when a person represents someone else’s work as his or her own—regarding works in the public domain, although a claim of false advertising may still be viable. Dastar took a set of video programs in the public domain, based on General Dwight D. Eisenhower’s book chronicling his European campaign in World War II, and edited them slightly, including replacing the original credits and removing references to Eisenhower’s still-copyrighted book. The owners of the film rights to the book and the expired copyright on the original video programs sued Dastar for, among other things, reverse passing off by presenting the video programs as a Dastar production.25 The Supreme Court held that Dastar’s actions did not constitute reverse passing off under federal trademark law because the video programs were in the public domain and therefore could be freely exploited by anyone. To hold otherwise would be to “create[] a species of perpetual patent and copyright, which Congress may not do.”26 The Court did, however, leave open the possibility that Dastar might be liable under other provisions of federal trademark law that prohibit false advertising, such as misrepresenting the nature or qualities of the advertised work.27 In light of the Dastar holding and the continued viability of some trademark claims, those seeking to use a public domain work should consider the prospect of liability for trademark infringement or related state unfair competition claims.
(IANAL but I love this kind of stuff.)
> Nonetheless, the U.S. Supreme Court’s ruling in Dastar Corporation v. Twentieth Century Fox Film Corporation24 greatly restricted the trademark claim of “reverse passing off”—when a person represents someone else’s work as his or her own—regarding works in the public domain, although a claim of false advertising may still be viable. Dastar took a set of video programs in the public domain, based on General Dwight D. Eisenhower’s book chronicling his European campaign in World War II, and edited them slightly, including replacing the original credits and removing references to Eisenhower’s still-copyrighted book. The owners of the film rights to the book and the expired copyright on the original video programs sued Dastar for, among other things, reverse passing off by presenting the video programs as a Dastar production.25 The Supreme Court held that Dastar’s actions did not constitute reverse passing off under federal trademark law because the video programs were in the public domain and therefore could be freely exploited by anyone. To hold otherwise would be to “create[] a species of perpetual patent and copyright, which Congress may not do.”26 The Court did, however, leave open the possibility that Dastar might be liable under other provisions of federal trademark law that prohibit false advertising, such as misrepresenting the nature or qualities of the advertised work.27 In light of the Dastar holding and the continued viability of some trademark claims, those seeking to use a public domain work should consider the prospect of liability for trademark infringement or related state unfair competition claims.
(IANAL but I love this kind of stuff.)
People in this thread keep claiming that because it is public domain, they can do whatever they want with it including license it, which is not true. They can certainly sell it, but a license is a legal instrument that grants usage rights, and Getty cannot grant such rights. To claim to do so is fraud.