Public Domain?

July 5, 2007 9:40 PM

Does the public library have the right to charge a "licensing fee" or "usage fee" for images, photos, drawings, etc., that they have placed online, but that were created before January 1, 1923? Isn't this work in the public domain, and therefore, free of charge?

I have tried to do as much research as I can, but I am still confused.
Here are some of the ask mefi posts I have read:
Are these people crazy? A copyright law question.
Can I "borrow" a copyrighted thing?
I have a question regarding copyright, public domain, and the digital domain. It's kind of a "fight the power" thing.

I want to grab images from the New York Public Library's Digital Collection. I do not want to buy prints, I am not looking for high resolution files, nor would I resell these works. I do not think I am obligated to "license" these images. The use is for a semi-commercial blog, that I hope one day might be commercial.

The NYPL states that "Commercial use is any use that brings value to the person or organization displaying the photograph to the public." The library also claims: "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."

It's not that I'm cheap, it's just that I am under the impression that "we" all "own" these works, especially since some of them were created in the 1800s. And the fees the NYPL proposes are $55 to $85, which would become rather expensive for more than a few.

Many thanks for your help!

posted by davidinmanhattan to law & government (26 comments total)

The original photos are in the public domain. The NYPL scans of the original photos are not. They own the copyright to these scans. If you want to use the original photo to make your own scan (your derivative work) you are free to. If you want to use their scan (their derivative work) you cannot without paying their fee.
posted by underwater at 9:58 PM on July 5, 2007 [1 favorite]

Underwater, may I direct you to:

The Bridgeman Art Library, Ltd., Plaintiff, - versus - Corel Corporation, et ano., Defendants.
97 Civ. 6232 (LAK)
posted by blenderfish at 10:05 PM on July 5, 2007

Blenderfish, when it comes to these things the Golden Rule applies: he who has the gold makes the rules.

Whether they actually have a valid copyright on those scans or not, they are claiming to have one, and the only way to prove them wrong would be to take them to court, which would cost more than the fee they want to charge.

Which is to say that the precedent to which you point is essentially irrelevant.
posted by Steven C. Den Beste at 10:12 PM on July 5, 2007

Steven:

Not only does the NYPL not seem to be claiming copyright, in fact they explicitly disclaim it in the portion of their language quoted by the OP. Their claim is that you enter into some kind of contractual relationship with them when you download the image from their web server. Whether that's valid is a question for an actual contract lawyer (and it is my understanding that, even then, it is a murky issue.) Also, whether a contract can be used to create a de facto copyright where the 'real' copyright doesn't apply is another potentialy murky issue. Personally, I think they're full of shit on both counts, but I'm not a lawyer, so my opinion doesn't really matter. Maybe you could skirt it entirely by getting someone else to download the image, then copying it from them?

Anyway, the discussion of the museum claiming some kind of copyright is a red herring. Nobody really mentioned it until Underwater brought it up.

And as for the fatalist 'golden rule' business, that, too, is a red herring; it doesn't really help answer the O.P's question.
posted by blenderfish at 10:35 PM on July 5, 2007

(This is not legal advice.) Blenderfish is right in that they do not own copyrights to the scans any more than they own copyrights on the underlying works. Contrary to SCDB's statement, they do not claim to own such a copyright either, which they make very clear (i.e. "The usage fee is not a copyright fee"). What they own is the physical material, and they are under no obligation to make it available to you at all (excepting any obligation imposed on them by their charter as a public library, of course). They have decided, for purposes of funding, that they will only make the material available to you for commercial use under a paid license.

This is not at all unprecedented. For another example, see something like WestLaw, a legal research service. While some of what they provide is subject to copyright (law review articles, treatises, etc.), much of what they provide is in the public domain (cases, statutes, and the like). But they charge for access, and as a condition of that access, impose conditions on their subscribers preventing them from doing something like copying stuff out of the database and putting it on the internet. They don't hold or assert a copyright, but they do have the right to establish licensing provisions as a condition of access.

The same is true for the library. Basically, you're "negotiating" with them for the right to look at what they have They're willing to grant you that right in exchange for certain concessions. You're free to make those concessions or walk away. Copyright doesn't enter into it.
posted by Partial Law at 10:36 PM on July 5, 2007

Actually the poster can use the images and wait for them to sue him. Exactly the opposite. One would not sue them for failing to turn over the scans.

I'm not advising the poster to do that, however. I'm advising the poster to seek competent legal advice and reminding him or her that I am not their lawyer.

It appears that the library is arguing that it is charging a "usage fee" for the physical use of the photographs. They are specifically not alleging they have copyright. They are licensing the use of the physical image which they own.

It appears that this is a reproduction fee.

One look at this tells me that this is definitely a job for an IP attorney. Don't half-ass this one--do it right.
posted by Ironmouth at 10:38 PM on July 5, 2007

>I am under the impression that "we" all "own" these works

True, but "we" don't all *have* these works. I am totally not a lawyer, but my interpretation of this issue is that people who *do* have these works, those who have gone to the trouble to store and copy and maintain these works, are under no obligation to provide them freely to everyone. As they said in the quote you provided, you are completely free to go elsewhere and find another source for the material if you disagree with their fees.

In my head it's similar to 'free' software - I may have the right to download and use the software, but that doesn't mean I am entitled to do so for free... I can still be charged for the costs of distribution. In the case of a library, the 'distribution costs' might include the archiving and maintenance of those works in the intervening 80 or so years since their initial publication, their conversion to some useful modern format, and the bandwidth and other assorted charges associated with delivering said works to you.
posted by foobario at 10:43 PM on July 5, 2007

Mr. Beste is wrong. They aren't claiming to have a copyright, they are simply charging for access to *their* images. They even flat out say that the images are most likely in the public domain. It's like this - you may have images that are public domain in your house. You can still charge people to come look at them. I don't have the right to see your private property even if the images contained on them are in the public domain. The library has the right to charge whatever they want to people wishing to access their *physical* property. If you want to access an image, they will allow you to do so for a fee, as long as you abide by their rules. They are more or less saying that you can blow off their policies if you can find the image elsewhere for free. But they are simply betting that you can't.
posted by Dee Xtrovert at 10:46 PM on July 5, 2007

I stand corrected on the question of copyright.
I stand by my statement on the Golden Rule. Inviting trouble by deliberately flaunting their claim to be owed a fee is not something that should be done without competent legal advice.
posted by Steven C. Den Beste at 10:47 PM on July 5, 2007

A google search of reproduction fees comes up with thousands of similar policies. I'm not sure how enforceable they are. My question is this, if they are providing it on the internet, aren't they essentially giving it away by action? They lack ownership of the copyright, and can control access to the materials and charge what they want to allow access. But once they put them on the web, what right do they have to limit use? No contract exists between them and the internet user. Potentially they could argue that the terms of service constitute a contract between the user and themselves, but it would be pretty hard to enforce. What cause of action could they possibly bring?

Again, I would consult a competent IP attorney to answer these questions.
posted by Ironmouth at 10:53 PM on July 5, 2007

Den Beste has it right this time. Get an IP lawyer.
posted by Ironmouth at 10:54 PM on July 5, 2007

Potentially they could argue that the terms of service constitute a contract between the user and themselves, but it would be pretty hard to enforce. What cause of action could they possibly bring?

Err... breach of contract?

You have basically got to the nub of it, though. The question is whether there is a contract between the user and the library, simply by using the website. That's going to depend entirely on the circumstances.

If you follow a direct link to the image, there's almost certainly no contract.

If you click through some kind of registration system and expressly agree to the terms and conditions, there probably is a contract.

If you're just going to use the low or medium res images, which don't require going through the "Buy a print" link, then I'd say there's probably no contract.

Of course, IAN(Y)AL, so you shouldn't rely on me to make your decision.
posted by robcorr at 11:39 PM on July 5, 2007

s/flaunt/flout/

Sorry, I don't mean to make it 'Everybody Jump on Steven' Day. Just one of those things, you know.
posted by eritain at 11:43 PM on July 5, 2007

I don't think they could argue a contract existed. Contracts require consideration. Here, there likely is none. The legal disclaimers page has none and only a forum selection clause (ha lol, good luck boys).

there's no offer, and no consideration. Thus, no contract.
posted by Ironmouth at 11:47 PM on July 5, 2007

My question is this, if they are providing it on the internet, aren't they essentially giving it away by action?

No. Placing material on the Internet does not yield or void any rights or claims belonging to the originator of the material.

Of course, there might be other ways of voiding their claims, and their claims might be invalid, but simply because it's on the Internet doesn't make it public domain.
posted by Steven C. Den Beste at 12:18 AM on July 6, 2007

I don't think you understand what I am getting at, Steven. The basis for this particular claim is the physical control of the material--for years libraries and other institutions have been milking this.

However, once they put the material out on the web, they are surrendering the control over the material. Someone can just come and take it. It is like leaving a stack of photos out on the street. No contract exists which the library can enforce.

Upon what basis does the NYPL have a right to the materials? They have put them on the internet where they can be taken for free. They have no copyright to the material and they have no contract in which they exchange something of value for the right to use the materials.

When one analyzes this type of question, one has to seek a method by which the right can be enforced. Here, there is none. The materials are literally set out for anyone to take. There is a bare assertion of the right to obtain payment for the materials, but no contract. If the library wanted to sue, they wouldn't have a cause of action. They must have a statutory, common-law, implied or constitutional basis to bring a case before a court. Put simply, a complaint must state a cause for which relief may be granted. They can't just write up a complaint and say "I deserve this give it to me." There must be a contract between the parties, or a law that says "Parties cannot use these things off the internet without agreeing to pay," or an implied cause of action stemming out of another law, or a constitutional right.

Here no such right exists. They have no actual ownership of the content of the material. They claim the rights based on physical control of the material and their ability to restrict access to the material. Unfortunately for them, they are just giving that control away by putting the items on the internet so that anyone can right click and copy.

Also, Steven, the photos in question are in the public domain. They have no copyright. The entire point of the question is how can the NYPL assert some sort of right over something which is in the public domain. I'm saying they cannot assert the right to physically control reproduction on the basis of control of the medium to be reproduced when they reproduce the pictures themselves and make them readily available.
posted by Ironmouth at 1:09 AM on July 6, 2007

Ironmouth:

I'm not sure that's right. It's arguable that the provision of the image itself is consideration. The real dispute is whether there is offer and acceptance. In this case I think there's not -- so we agree there's no contract, but get there by different reasoning.

Steven:

Assuming the image in question is already in the public domain, the only right they have to charge is for access to their copy. If they post that on the web for nothing, then I think they have given it away. They make you pay for a high res version, and are within their rights to do so. But I reckon they've no right to stop you using the thumbnail as you please, because they put it on the site without restricting access to it, and they don't have copyright.
posted by robcorr at 1:10 AM on July 6, 2007

Also partial law, what westlaw offers is pagination and headnotes, which is copyrightable. They do not own copyright to te cases. That is explicitly non-copyrightable as it is a government product.

The difference here is that NYPL is not charging for access. They are providing free access and then demanding that the user pay them. There is no contract and they own nothing. They control the physical items, but then turn them over to you without any contract at all. How they would enforce such claims is beyond me.
posted by Ironmouth at 1:18 AM on July 6, 2007

I am all for the usage fees. If everyone decided not to pay, how is the library going to fund the scanning of more of these images that the public can enjoy? It isn't free for the library to post these images. It costs them to have a scanner, to have a person scan them and to host them on their website. Support the NYPL.

If you want images for yourself to use on your commercial blog, buy them on Ebay. Then you are under no obligations. I have bought plenty of images on Ebay to use for such purposes.
posted by JJ86 at 5:11 AM on July 6, 2007

You may be interested in the 2003 address to the Society of American Archivists by its then-president, Peter Hirtle, which you can read here — it's dedicated entirely to this issue. Hirtle has written pretty extensively about copyright as it relates to libraries, museums, and archives, and knows what he's talking about. He writes:

I would argue the existence of at least four categories of reasons, legal, principled, ethical, and practical, why efforts to use our physical control of public domain documents to impose a quasi-copyright control over them are doomed to failure.

His is the minority opinion among archivists, and these fees are very common; I don't know what the lawyers think, though I'd be amazed if the NYPL's usage fees were enforceable in the absence of a signed contract. I'm not aware of any case in which this practice has been tested in court.
posted by enn at 6:04 AM on July 6, 2007

I have nothing really useful to add to the discussion except that it reminds me of a recent post on boingboing.

The NYPL's position practically invites a generous intermediary to come along, download everything for non-commercial use, and give it away to anyone who wants it.
posted by adamrice at 7:04 AM on July 6, 2007

As the OP, I'll weigh-in here for a moment:
First, though, thank you to everyone. You have all put a great deal of thought and energy into my question. Much appreciated!

As a layperson (such an ugly word) my feeling is this:
(1) The NYPL is a public institution that is funded with tax dollars. Unlike most local libraries, they certainly receive large private donations, and without these funds, they probably could barely exist. Additionally, any income the NYPL receives is definitely "a good thing," and if they can help fund their interests, it helps us all.
(2) They have a right to charge for delivering a physical item, say, a print of a map from 1911. It costs them money to create that one item.
(3) Posting of public domain images on the web is the equivalent of providing access to a book in the library. In fact, last I remember, there are many "Xerox" machines in libraries that allow you to make a copy of a page in a book, etc. You are paying for the use of the machine. (I may be heading into trouble if I continue along this thought-path...)
(4) All I want to do is use images on my blog, perhaps as the background of the header at the top of the page. Or perhaps, (which I think is not questionable,) as a thumbnail to write a piece about the image. If anyone actually reads my blog, at some point I would like to get some text ads to add a litle income for me.
(5) I would be happy to make a small donation to the library. I love it. It's a wonderful place. It is, to be a bit dramatic, but, truthfully, a cornerstone of our civilization.
(6) I just want to do the right thing. I don't think grabbing an image of public domain work from the library's website - again, not a high-res file, just whatever they have online, should be subject to a $55 or $85 "usage fee."

Would love to see the debate continue. Sorry for the intrusion. Many thanks again.
posted by davidinmanhattan at 7:35 AM on July 6, 2007

You're paying for the service, not a license for the copyright. Finding the old images, scanning them, archiving them, keywording them, cleaning them up, putting up some sort of web-site delivery system, and then having people download them all cost money. It sounds like they just want reimbursement for what I'm sure was a costly endeavour, even if the actual images are public domain and free for use by anyone.

Many stock agencies (Getty, Corbis, etc.) do this too. You can license historical, public domain images from them for a fee. You're not paying for a license for the copyright, you're paying for their added value (in their case, huge files that some professional retoucher cleaned up and someone else spent time researching to keyword so you could find it).
posted by bradbane at 7:59 AM on July 6, 2007

Have you tried talking to someone at the library? I work in a museum, so slightly different context, but the same problem comes up with our rights and repro dept (which I am not in). Our Dir of Photo Services often deals with requests on an individual basis, despite the fact that we have a blanket policy, precisely because (as all these answers demonstrate) usage is not always black and white. If she's sympathetic to the explanation of use, she'll often give people a break.

My only qualm with your suggested use is that it sounds like you'd really like to make money off your blog -- which means that your use is essentially commercial -- so you won't get any points from the NYPL folks for being "educational" or "fair use" or whatever they have a soft spot for.

OTOH, we have different rules for how much image rights cost depending on how they're used (you suggest "the background of a banner" for instance, which isn't the same as "as my huge splash page image") and the quality of the image (i.e., print size -- for example, black and white and tiny might be cheaper than huge and in color).

And, finally, we reserve the right to deny repro requests, so be aware of that -- the former head of my department felt it was unacceptable for images from our collection to be cropped, covered with type, etc. He is insane in this respect, but he was still in charge...
posted by obliquicity at 8:26 AM on July 6, 2007

I read the policy statement as an implied "we have higher-res versions of these images that you can use for a commerical venture (because you're poster will look like ass if you use our for-the-web-version), but you'll have to pay to get access to them" statement, and not an attempt to say anything abou the images on the web itself. We're talking about a physical library, I assume they wrote the policy in the physical library first, and just transposted it to the web without considering the bean-plate-overthinkers-union.
posted by nomisxid at 9:07 AM on July 6, 2007

There's no copyright on nontransformative reproduction. A scan of a public domain painting cannot be copyrighted. They are offering the materials by making you enter into a contract on their usage.
posted by erikharmon at 9:32 AM on July 6, 2007