Are these people crazy? A copyright law question.

December 19, 2006 4:17 AM

Copyright-filter: "The Public Domain status does not give you the right to resell material unless you have access to the original source and permission from the owner to reproduce the material" What?

Is this true? It's kind of confusing. I stumbled across this website, http://www.snowflakebentley.com, where they make this assertion. As far as I know, public domain means no restrictions. How can you get permission from the owner to reproduce the material if the owner is, in essence, everyone?

"Public Domain material is only "Royalty free" if explicitly stated."

This seems like pure hogwash. Perhaps what they are trying to say is, they have some sort of copyright over the images on their site because they digitized them and such. Does digitizing a pubic domain photograph create a derivative work, or something else? If it is a derivative, do derivative works of public domain content create a new copyright under the new author? This is all so confusing. Basically, I think that they are either not explaining this clearly or are misinformed about copyright law.

Are they trying to stop people from reselling his public domain works by spreading FUD so people will buy them from their website instead? Or do they have a legal right because they created a new work by digitizing his photographs?

posted by crypticgeek to law & government (13 comments total)

The below assumes UK/US-like copyright law, and IANAL (although I did used to work in the UK Parliament on this stuff).

"The Public Domain status does not give you the right to resell material unless you have access to the original source..."

False. It doesn't give you the right to resell, modify, distribute, etc. the material, unless you have access to the original source or a derived work that has also been placed in the public domain or under a license that explicitly permits such use.

"..and permission from the owner to reproduce the material"

False. Not clear which owner they mean (the original author, or the owner of derived works, e.g. the person who scanned these plates). If something is in the public domain then, by definition, no permission is required to exploit the resource in any way.

"Public Domain material is only "Royalty free" if explicitly stated."

Pure hogwash, as you say.

So, their description of copyright is terribly muddled. However, if their aim is to assert that their digitizations are under their copyright, then they are correct. The situation is probably this: the copyright of the original plates are in the public domain. However, their digitized images are derived works, and are not. They can prevent you from using these scans in any way they like (within the limits of your/their local fair use/fair dealing conditions). Copyright notices with similar aims (although less utterly wrong and confused) can be foundon, e.g. The NYPL Digital Collection, which is a collection of scans of very, very public domain documents.
posted by caek at 4:33 AM on December 19, 2006

That's what I thought. Thanks caek.
posted by crypticgeek at 4:40 AM on December 19, 2006

This is pretty much a crackpot assertion. Public domain is royalty free, by definition, and becomes public domain by the owner's explicit declaration or by expiration. A third-party assertion that materials are in the public domain is not enough to protect someone who republishes or distributes the material, whether for profit or not. You would need to do some research or risk getting sued. Guidelines for copyright expiration link.
Not that I think anyone would want to scrape that fugly site
posted by nj_subgenius at 4:48 AM on December 19, 2006

The situation is probably this: the copyright of the original plates are in the public domain. However, their digitized images are derived works, and are not.

FWIW, this was the assertion at issue in Bridgeman Art Library v. Corel, where the court held that photographic reproductions of public domain works are not copyrightable. I believe Corbis has been involved in similar litigation.
posted by IshmaelGraves at 6:11 AM on December 19, 2006

IANAL, but from what I understand of US copyright law: Unless Bentley explicitly released his photographs into the public domain, all photographs originally published after December 31, 1922 are under copyright, as are digital copies of those photographs. It doesn't matter if he "took out" copyright or not; copyright automatically exists unless the creator explicitly agreed at some time to release the photographs in the public domain. The copyright belongs to Bentley's heirs.

With respect to any photographs published on or before December 31, 1922, neither the photograph nor any true non-transformative reproductions are under copyright. A true reproduction of a two-dimensional work of art that has gone into the public domain cannot be copyrighted in the US. See Bridgeman v. Corel for details.
posted by watsondog at 6:13 AM on December 19, 2006

Ishmael, exactly. A digitized image which is a true reproduction of the original isn't copyrightable because it isn't original. Originality is the basis of copyright, not derivation or transformation into another medium.

Bridgeman v. Corel held that any true reproduction of a two-dimensional public domain work of art is itself in the public domain. You have to change the artwork, make it look sufficiently different, in order to copyright it.

It takes some originality to reproduce a three-dimensional work of art photographically (the photographer chooses the lighting, angle, background, etc.), so photographs of three-dimensional works of art in the public domain may be copyrightable.
posted by watsondog at 6:18 AM on December 19, 2006

Well, to be precise, a photograph of an unprotected work is protected to the extent the photograph is a new creative work. What those cases hold is that in those cases, the photographs were strictly documentary and added no new creative elements that could be subject to copyright protection.

But overall, yes, the web site's claim is utter crap.

(I am a lawyer, but not your lawyer. Consult competent counsel.)
posted by raf at 6:39 AM on December 19, 2006

Then this doesn't sound right either:

from the NYPL website -

As the physical rights holder of this material, most of which is in the public domain for copyright purposes, the Library charges a usage fee to license an image for commercial use (defined above). The usage fee is not a copyright fee. You are free to obtain a copy of these images from a source other than NYPL. Usage fees help ensure that the Library is able to continue to acquire, preserve and provide access to its collections.
posted by cda at 6:54 AM on December 19, 2006

As the owner of the physical media, the NYPL is free to do whatever it wants to allow its patrons to access those physical goods.

IANAL, but from what I understand of US copyright law: Unless Bentley explicitly released his photographs into the public domain, all photographs originally published after December 31, 1922 are under copyright, as are digital copies of those photographs.

Copyright formalities were eliminated with the Copyright Act of 1976. At that time, works protected by copyright were granted an extension of that protection. Works that were not copyrighted or did not have their registration renewed remain in the public domain. This chart explains copyright status much more clearly.

The site linked in the original post notes that the works were not registered originally and thus not copyrighted (aka in the public domain.) Public domain works are, by definition, royalty free. If the scans are simply faithful reproductions of the original photos, with no added originality, they may not be independently copyrightable.

(I am a lawyer, but not your lawyer. Consult competent counsel.)
posted by andrewraff at 7:44 AM on December 19, 2006

So then the Bentley site should, instead of talking about copyrights, charge a usage fee for using their scan of one of Bentley's snowflake photos?

Then if you use it without paying that would be a shoplifting charge?

What could potentially happen if you use an image from the NYPL without paying their "usage fee"?

(FYI I'm on the side of Bentley and NYPL, just trying to understand this myself.)
posted by cda at 8:14 AM on December 19, 2006

FWIW, this was the assertion at issue in Bridgeman Art Library v. Corel, where the court held that photographic reproductions of public domain works are not copyrightable.

I was not aware of that case, and stand corrected. Very interesting too!

As the physical rights holder of this material, most of which is in the public domain for copyright purposes, the Library charges a usage fee to license an image for commercial use (defined above). The usage fee is not a copyright fee. You are free to obtain a copy of these images from a source other than NYPL. Usage fees help ensure that the Library is able to continue to acquire, preserve and provide access to its collections.

The status of this does indeed become uncertain, given that case. I've applied for to them for commercial usage rights before, and what is charged depends entirely on the nature/scale of use, etc., which is how a royalty normally works. I guess they just want to establish what you can afford to pay toward their (real) costs, and give the impression that you are obliged to do so.

Of course, since NYPL is a public institution, there is a moral obligation to support their work, but it seems from this thread that there is no legal obligation, assuming you're happy with the lo-res RGB scans available on the website (I'm usually not).
posted by caek at 8:59 AM on December 19, 2006

This previous discussion also got into these issues.
posted by nanojath at 9:12 AM on December 19, 2006

Also, FWIW, the British Library and the Bodleian Library (Oxford) are pretty vehement that they own the copyright to their reproductions.
posted by caek at 9:13 AM on December 19, 2006