> Having said that, if it turns out that the library of congress is responsible for the infringements (because they published the images and labelled them incorrectly as being public domain) then Getty would be off the hook for infringement
It seems to me that mislabeling wouldn't make the LoC legally responsible for the infringement, but might make Getty not liable for any infringement that happened entirely before they were made aware of the incorrect labeling. Or maybe not; since willfulness is an enhancement on liability for infringement liability [0], not a prerequisite, the fact that Getty did not know that the images were subject to copyright may not be a defense.
> I suppose it's possible that an unscrupulous third party falsely licensed the "public domain" images to Getty, which would make Getty responsible for neither the falsification of copyright information, nor the infringement.
AFAICT, that wouldn't necessarily legally relieve Getty of liability, though it would make the other party liable to the copyright owner for willful infringement, fraudulent claims of ownership, and contributory infringement (with regard to Getty's infringement), and also liable to Getty for fraud and potentially other torts.
I wonder if they filed any DMCA claims over those images, though? The clause you attest to under penalty of perjury is that you represent the copyright holder of the works claimed to be infringed.
So if they sent her a DMCA of her own images, as one might assume based on what was said, then it could be interesting if that gets brought up in court.
Yes I definitely agree with this assessment. There's more than a few scenarios in which Getty unintentionally infringed but is still liable and will look to sue the third party which misled them.
It seems to me that mislabeling wouldn't make the LoC legally responsible for the infringement, but might make Getty not liable for any infringement that happened entirely before they were made aware of the incorrect labeling. Or maybe not; since willfulness is an enhancement on liability for infringement liability [0], not a prerequisite, the fact that Getty did not know that the images were subject to copyright may not be a defense.
> I suppose it's possible that an unscrupulous third party falsely licensed the "public domain" images to Getty, which would make Getty responsible for neither the falsification of copyright information, nor the infringement.
AFAICT, that wouldn't necessarily legally relieve Getty of liability, though it would make the other party liable to the copyright owner for willful infringement, fraudulent claims of ownership, and contributory infringement (with regard to Getty's infringement), and also liable to Getty for fraud and potentially other torts.
[0] see, e.g., 17 U.S.C. Sec. 504(c)(2)