How Can I Stop Colorizers From "Stealing" My Antique Photo Collection?

Dear Rich: I have an extensive collection of original antique photo prints. Some are art photos, some are amateur/snapshot photos, some are news photos from Acme and other agencies. I foolishly posted a few on Pinterest a long time ago without watermarks. There are colorizers who swipe images without permission, colorize them, then present the result as their copyrighted art. Instagram has stopped removing colorizations of my photos when I report them saying I can't prove I hold the copyright to the original. I realize the news photos are copyrighted by Getty most likely (they charge $100 per hour to find out), but what about the art photos and private amateur photos? How do I establish copyright to protect my collection?
Owning a photographic print may have value as a vintage collectible but in order for you to stop colorizers from copying and modifying your collection, you need to acquire copyright in the photos. That's unlikely for two reasons: (1) most of the photos are likely in the public domain in which case, no one can claim copyright, and (2) if copyright still existed for some of the photos, you would need to track down the owner (the photographer or the person or company who acquired it from the photographer) and buy the rights. That's a considerable expenditure of time and money.
If the photos are public domain, how can Getty claim copyright? As the Library of Congress explains (in regard to Acme photos), news photos published before 1963 are likely public domain because they weren't renewed. Getty cannot assert copyright in public domain pictures but they may be betting that users would rather pay the licensing fee versus proving that copyright has expired. In short, users are paying to access high-quality scans of vintage photos.
If the photos are public domain, how can colorizers claim copyright?
As we explained a few years ago, it is possible to register a colorized black and white photo with the Copyright Office provided that the results "reveal a certain minimum amount of individual creative human authorship." Analogizing as to how the Copyright Office processes colorized motion pictures, the colorizer would have to demonstrate (1) numerous color selections made from an extensive color inventory; (2) a range of additional colors that is more than a trivial variation, and (3) that the overall appearance of the picture must be modified. A colorized image is considered a derivative work and the copyright extends only to the color choices. If the underlying work is not in the public domain, the colorizer will need permission from the copyright owner to reproduce or sell the derivative (or risk a charge of infringement).

Any Defense from Getty Images Claims?

Dear Rich: My company purchased several images from Getty Images for a client about six years ago. We used pieces of the project as a self promotion on our website. Getty License Compliance contacted us about it and we immediately removed the image from our site. Now they are nicely asking me how long the image was on the site because they want to collect for the usage. Do I have any defense in this case? If we could see into the future, we visualize you writing a check to Getty Images. You may have a reasonable defense -- fair use based upon your use for self-promotion (the equivalent of creating a resume) -- but chances are that when you measure your chances of success and compare that to the expense of a lawsuit, you'll find yourself reaching for your checkbook.
Getty isn't just chasing you ...  Getty is very active as a copyright enforcer and pursues approximately 40,000 instances of infringement in the United States each year. However, according to Getty, the company disfavors litigating:

"For cases of identified infringement, Getty Images typically attempts to recover damages in the form of lost license revenue and enforcement costs. Damages sought vary depending on the image used, and the nature and duration of use. Typical damages range from several hundred to several thousand dollars. While many of these cases are resolved amicably, many others are not. For those cases that are not resolved, litigation is available, but is prohibitively costly for either Getty Images or its individual contributors. The costs associated with litigation far outweigh the damages sought, and render litigation a completely ineffective option, unless a rights holder elects to make the investment to make an example of an infringer, regardless of the economics of the process."

If this is an accurate statement of policy, then a strong fair use defense that's part of a court case may achieve a more favorable settlement, particularly if Getty fears a precedent-setting decision about fair use of its images.  You can compare the facts in your case with other photo fair use cases and if you feel you have a decent fair use defense, consult an IP lawyer for confirmation. (You may also find this advice to be helpful.)