Respected music photographer, Alec Byrne, is suing Getty Images for copyright infringement, after finding the agency licensing his photos of famous bands such as ABBA, Fleetwood Mac, and the Bee Gees.
The US lawsuit, filed in California, alleges Getty Images committed copyright infringement by selling pictures captured by Byrne in the United Kingdom between 1969 and 1973.
The lawsuit claims that at least 175 Getty Images’ customers downloaded and published one or more of Byrne’s photos through Getty’s ‘Premium Access’ subscription system, and at least 62 customers purchased ‘a la carte‘ images licenses.
‘Upon information and belief, Getty Images has received ill-gotten revenues from the unauthorised licensing and distribution of the Subject Photographs, including but not limited to the subscription downloads and a la carte sales made to the Doe Defendants,’ the lawsuit claims.
Byrne’s lawsuit includes several high-profile Getty customers as defendants – LA Times, Vox Media, Dotdash which owns People Magazine, and Quarto Publishing, as well as a ‘John Doe’.
Byrne became aware of Getty’s alleged offending on November 16, 2021, when he found his 1974 ABBA photo being sold by Getty and attributed to Redferns Music Picture Library. Getty acquired Redferns Music Picture Library, an archive launched in the early 1960s by the late music photographer David Redfern, in 2008.
It’s unclear how Byrne’s images entered the Redferns Library. The lawsuit doesn’t state whether Byrne established an arrangement with Redfern prior to Getty’s acquisition. It’s possible Redferns Library erroneously collected it decades ago, and this didn’t become apparent to Byrne until after it came into Getty’s possession, or Getty scraped it from somewhere.
According to the lawsuit, Getty isn’t selling a licence of the image. Rather the sales arrangement is providing ‘access rights only’, due to the image supposedly being distributed for publicity.
The lawsuit: ‘The ABBA Photograph available on Getty Images included a ‘restriction’ stating: “Contact your local office for all commercial or promotional uses. ACCESS RIGHTS ONLY. This is a publicly distributed handout. Getty Images provides access rights only and does not license the copyright in the image.”
‘Access rights’ suggests the image was distributed to promote ABBA, effectively loosening up the copyright licensing restrictions on the image. A publicly-distributed promotional image provides media and publications authorisation to publish the image without permission, provided the usage adheres to the promotional guidelines.
There are still restrictions relating to usage. This is possibly why the lawsuit notes Getty was only providing ‘editorial rights’, which means the image usage is limited to being informational or illustrative. It’s not a royalty-free licence or public domain image, which would likely result in Getty having the lawsuit thrown out, as the stock agency was unsuccessfully sued in 2016 for licensing public domain images by Carol Highsmith. Getty’s legal team argued that the stock agency was selling services – the cataloguing and presentation of Highsmith’s 18,000 public domain images.
It’s possible that in response to Highsmith’s failed high-profile lawsuit, Getty now issues a clause stating public domain or promotional images are only available on an ‘access rights’ basis, as the agency doesn’t have authority to sell a licence.
Although Byrne’s lawsuit highlights how customers still purchase the image with ‘editorial rights’.
‘Getty Images confusingly offers and has sold “editorial rights” licenses to Plaintiff’s images while simultaneously stating that it “provides access rights only and does not license the copyright in the image.” 56. Upon information and belief, the full scope of images that Getty Images has offered and sold with such contradictory “restrictions” language is not limited to the Subject Photographs.’
The lawsuit makes a good point. If the image is a third-party handout, how can Getty set any licensing usage parameters? Inside Imaging was unable to find any mention of ‘access rights’ on Getty’s Content Licence Agreement page.
Byrne claims the image was never distributed for publicity, anyway. He asserts to be the sole copyright owner, and the image was never circulated to promote ABBA. Getty is therefore in no position to have the image for sale in its archive. The same goes for several other images Byrne discovered in Getty’s possession.
Nathaniel Kleinman, a lawyer representing Byrne, told Law.com that ‘once these images are sublicensed out en masse and at bargain basement prices, it is extremely difficult if not impossible to regain control of the imagery and maintain its commercial and historical value. We’re hopeful this case helps stem the tide in some capacity.’