Skip to main content

Television Russell Smith: When bots have a say in the chain of custody of artwork

Last week, I mentioned a clever artwork – a wall in Belgium painted with the watermark of Getty Images – satirizing the ubiquity of that logo. That same week, Getty was in the news for less amusing reasons: A massive lawsuit has been filed against the stock photo agency by a photographer who claims it's using her work unfairly.

This is not the first troubling copyright dispute Getty has been involved with. The image bank has a long history of upsetting photographers and other rights holders with its own aggressive litigation against those it claims are using its property without paying for it. The complex copyright cases involving Getty are endless. They show how the world has become at once more easy and more difficult for artists seeking exposure.

The recent case involves U.S. photographer Carol Highsmith, a highly successful and widely reproduced artist. She makes pretty and conventional pictures of the United States, mostly landscapes and buildings. It is a sunny and nationalistic oeuvre; there are lots of state fairs and parades. She has had coffee-table books and U.S. stamps made of her work. She has donated a large collection – a documentation of all 50 states, over 100,000 photos – to the Library of Congress, royalty free, and stipulated that they be in the public domain.

Story continues below advertisement

Highsmith didn't know – for a while, it appears – that Getty Images was selling reproduction rights to many of those photos. The way she found out was a stunning one: She received a letter demanding that she pay Getty a fee ($120) for the use of one of her own photos. Highsmith responded with a massive lawsuit of her own. Her lawyers are demanding $1-billion (U.S.). They want compensation for 18,755 of her photographs that they say Getty (and another company, Alamy) is profiting from. These photos, which were a gift to the American people, the lawyers say, have been affixed with that famous Getty watermark – the one we are learning to love and hate.

Artists are going to line up predictably on Highsmith's side. It seems outrageous to demand a photographer be asked to pay for the use of her own work, particularly when she has gifted that work to the public. It seems like another example of corporate bullying. But the suit will undoubtedly be complicated, as everything to do with posting images on the Web is. If, for example, an image is free, does it mean anyone else is free to charge for cataloguing it and giving access to it? If you put your old dresser on the curb and I pick it up, can't I sell it myself?

Getty and Alamy are not the enemies of artists, generally, not by a long shot; the existence of these well-maintained and catalogued archives is good for image-makers. It enables many more photographers, without access to publicity machines of their own, to sell their work and profit by it. Almost everyone I work with uses stock photos at some point in their jobs – to make book covers, to illustrate magazine articles, to make flyers for concerts – and they pay for them, which is good for everyone.

Furthermore, the stock companies bring work to light that otherwise sits in basements and hard drives. They relentlessly look for new images. They preserve and catalogue images for posterity. That is generally good for photographers and for the public.

How could such a PR disaster such as this one happen then? Why would Getty take on a beloved populist like Carol Highsmith? Probably because a robot did it. Their bots don't know the ins and outs of how their images were acquired: All they do is relentlessly sweep the Web looking for watermarks, or however else they are trained to recognize proprietary imagery. The bots send an alert to a legal department, which sends out a standard letter. They are sending letters all day, every day. Most are just intended to serve as warnings or tests – it is well known that if real lawyers actually fight back against the big archives, they will often back down.

I asked a copyright lawyer in the United States for an opinion on the merits of Highsmith's case (he didn't want to be named because he, like all of them, works frequently with Getty). He said he would need to know a couple of things: if Getty and Alamy had been given notice of their infractions before the lawsuit; if all of her images were registered for copyright protection; if the Library of Congress has some kind of clause insisting on proper credit when the photos are reproduced.

He points out that even if Highsmith's photos are in the public domain, Getty could make an argument that it is not charging for the photo but for the service that organizes and makes photos easily downloadable. Indeed, Getty's public statement on the case so far is: "It is standard practice for image libraries to distribute and provide access to public domain content, and it is important to note that distributing and providing access to public domain content is different to asserting copyright ownership of it."

Story continues below advertisement

My lawyer says: "Their mistake was obviously in sending her a cease and desist letter, though. Robots are running the show."

Lawyers such as my guy are usually the ones sending out the cease and desist letters themselves, trying to protect their artist clients from copyright infringement. There are great advantages to artists to have their work accessible on the Web, but ensuring it is not used in ways they didn't intend is almost impossible. "We have almost had to give up," he says, "because we can't police the Internet."

So we must rely on software to do the policing: The artists' bots search for illegal misuse of their work, the image banks' bots do the same thing; they occasionally run up against the very artists they are trying to protect. That's when human lawyers get called, and they make a fortune.

Report an error Editorial code of conduct
Due to technical reasons, we have temporarily removed commenting from our articles. We hope to have this fixed soon. Thank you for your patience. If you are looking to give feedback on our new site, please send it along to feedback@globeandmail.com. If you want to write a letter to the editor, please forward to letters@globeandmail.com.

Welcome to The Globe and Mail’s comment community. This is a space where subscribers can engage with each other and Globe staff. Non-subscribers can read and sort comments but will not be able to engage with them in any way. Click here to subscribe.

If you would like to write a letter to the editor, please forward it to letters@globeandmail.com. Readers can also interact with The Globe on Facebook and Twitter .

Welcome to The Globe and Mail’s comment community. This is a space where subscribers can engage with each other and Globe staff. Non-subscribers can read and sort comments but will not be able to engage with them in any way. Click here to subscribe.

If you would like to write a letter to the editor, please forward it to letters@globeandmail.com. Readers can also interact with The Globe on Facebook and Twitter .

Welcome to The Globe and Mail’s comment community. This is a space where subscribers can engage with each other and Globe staff.

We aim to create a safe and valuable space for discussion and debate. That means:

  • Treat others as you wish to be treated
  • Criticize ideas, not people
  • Stay on topic
  • Avoid the use of toxic and offensive language
  • Flag bad behaviour

Comments that violate our community guidelines will be removed.

Read our community guidelines here

Discussion loading ...

Cannabis pro newsletter