Public Domain Images, Can Anyone Use Them?

Posted on 8/2/2016 by Jim Pickerell | Printable Version | Comments (1)

This is an update on the story we published last week concerning Carol Highsmith’s copyright infringement suit against Getty Images and other defendants.

The additional defendants include Picscout, Alamy and John Does 1 to 100. The “John Does 1 to 100 are unnamed, as yet unidentified parties acting in active concert or participation with the named defendants as part of this course of conduct.”

The John Does could be any of Getty’s sub-agents or any agency that has obtained photos, either directly or in-directly from the Library of Congress, and then licensed those photos to a customer.

In the last week many Digital Media Licensing Association (DMLA) members have contacted the DMLA in an effort to get a clearer understanding of “what is public domain,” and whether they can license a digital file or sell a work of art that is out of copyright and in the public domain.  Nancy Wolff, DMLA Counsel, has provided a detailed answer to this question in a blog post here.

Ms Wolff points out that “Many DMLA members specialize in or include archival material in their image collections and make theses images available to publishers and other users and charge a fee. There is nothing improper or illegal about that. These archives or the collectors have made substantial investments in scanning, enhancing, keywording and making their copy of the public domain work easily searchable and usable.” The fee is more a research and service fee rather than a fee for the right to use the work.

If the end user had been aware of the existence of the work they might have been able to obtain a copy free of charge, or for a small copying fee. But most users are not aware of what can be found at the Library of Congress and need some help in locating appropriate images.

On the other hand, Getty Images efforts to charge users for public domain images it does not have the exclusive right to represent, and that the user obtained from an entirely different source, may be a different issue.

Copyright © 2016 Jim Pickerell. The above article may not be copied, reproduced, excerpted or distributed in any manner without written permission from the author. All requests should be submitted to Selling Stock at 10319 Westlake Drive, Suite 162, Bethesda, MD 20817, phone 301-461-7627, e-mail: wvz@fpcubgbf.pbz

Jim Pickerell is founder of, an online newsletter that publishes daily. He is also available for personal telephone consultations on pricing and other matters related to stock photography. He occasionally acts as an expert witness on matters related to stock photography. For his current curriculum vitae go to:  


  • PAt Kane Posted Aug 2, 2016
    Well, I've read the entire complaint and there is definitely a missing defendant: Buyenlarge. This on-demand publisher may not have enough assets to be worth suing but at first blush it seems to be the culprit. The complaint even contains a sample credit line that reads Carol M. Highsmith/Buyenlarge/Getty Images. Online promotional literature, related websites, and a PDF for Buyenlarge emphasize that most of their content is in the public domain. Based on the copyright dates of the websites it's hard to determine if they are primarily doing on demand printing for online retailers, creating retail products or selling custom-wrapped chocolate bars for fund raisers. My guess is that plaintiff wants to rattle the cage of a bigger catch before implicating a Ma and Pa operation that may have simply misunderstood that uploading their image collection to a stock agency might be unethical if not illegal. Once Buyenlarge is named as a defendant Getty can plead, "not our fault!"

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