How does copyright apply to works that have entered the public domain?

May 22, 2004 9:09 PM

I have a question regarding copyright, public domain, and the digital domain. It's kind of a "fight the power" thing. [mi]

Okay, so I've done some research, and I'm confident in my knowledge that any works created before 1923 is in the public domain.

My question is, how does copyright apply to works that have entered the public domain? For example, if I were to scan a photograph that has entered the public domain into a jpeg, would I be able to claim any sort of copyright over this scan?

The reason I ask is because I'm a student of local history, and our local historical society has a large collection of photographs, many of which predate 1923, that they have put online with this notice: "We must remind you that you may not reproduce, alter or transmit any of the photographs in the collection without written permission." I find this policy to be insane because a) it ignores the public domain and 2) doesn't promote the preservation of history.

Would I be within my rights to put copies of these public domain images on my website for public download?

posted by keswick to law & government (13 answers total)

er, *are* in the public domain.
posted by keswick at 9:11 PM on May 22, 2004

I'm in a similar situation, and from what I understand, the historical society doesn't own the copyright on the negatives, they own the copyright on the prints/scans.

At least, that's how it was explained to me by someone who might not have known what they were talking about.

Have you asked them for a waiver?
posted by cmonkey at 10:55 PM on May 22, 2004

keswick, if you digitize the public-domain document, you own the copyright on the digitized file. Hence the historical society certainly owns the copyright on photograph scans which they put online; you can't just re-use those. You probably, however, can get access to the photographs yourself at the historical society, and with permission you can scan them. (Or perhaps they'll grant permission for their jpegs, depending on your purpose.)

If this confuses you in any way, substitute "translate" for "digitize". Imagine a translated work of Pushkin. The translator used his own words and efforts to create the translation, so he may copyright that. The copyright on the translation, of course, in no way affects the copyright status of the original -- the Pushkin translation is in copyright for the standard term, but Pushkin himself is public domain: anyone may translate him themselves. Using the work of another translator in any way, however, would be a copyright violation.

Ideally, of course, the historical society would be digitally hip and put the materials online with a Creative Commons license.

(This sort of thing comes up in genealogy all the time. People type in the data in an old directory, say; put it online; and slap a copyright on it. The genealogical society that owns the physical copy of the directory is livid, because "their" work was copyrighted; the people who are in the list are livid, because "their" information isn't available for re-use; and of course, the person who wanted to create a rival genealogy site using the first person's work is livid, because of the cease-and-desist order he just received. Genealogy could use a good dose of the Creative Commons.)
posted by dhartung at 11:36 PM on May 22, 2004

What dhartung said. It also comes up with music. Nobody owns Beethoven's 5th Symphony, but that doesn't mean that a recording of the NY Philharmonic performing that symphony is in the public domain.
posted by bingo at 11:59 PM on May 22, 2004

As a practical matter, why not just link to the image file on the historical society's website?

No legal advice dispensed herein, but your curiosity may get an assist from Bridgeman v. Corel, 25 F. Supp. 2d 421 (S.D.N.Y. 1999). The judge in that case (trial level; it was not appealed) absolved Corel from liability for lifting public domain artwork from a digitized database, since Bridgeman's collection wasn't protectable.

In general, copyright rewards your originality, not your labor. The seminal case on the subject is Feist Publications v. Rural Telephone, 499 U.S. 340 (1991) (holding that you can't copyright the white pages in the phone book). But originality can be found anywhere - creativity can lie in the compilation, the reproduction, even the choice of what to scan in the first place. Maybe they used a sepia filter? Or did some other photoshop alterations? A watermark, perhaps?

Bingo's hypo is a much easier case. Interpretations of public domain musical works have the requisite originality. Each recording of Beethoven has its own nuances. The original sheet music is public domain, of course.
posted by PrinceValium at 12:21 AM on May 23, 2004

And it also doesn't mean that a given piece of sheet music embodying Beethoven's 5th is in the public domain, even if a different piece of sheet music representing the same notes is.

Museums often make use of photographers' copyrights like this. For example, a museum might have a famous, old-enough-to-be-PD artwork. They have no copyright rights over it, but they do have physical control of it. If they prevent anyone from taking pictures of it without assigning the copyright of the picture to the museum, then they can still control the use and distribution of the artwork even though the actual artwork is in the public domain. Hence: no photos allowed in the museum, but you can buy prints in the gift shop...
posted by hattifattener at 12:31 AM on May 23, 2004

The whole reason this came up is because the historical society in question is teh suck. It basically exists merely as a social club for dried up old biddies. Unfortunately, the complete work of a prolific local photographer was donated to the society, basically locking it away for all time.

The society is only open from 10-4 on weekdays, so if you're not retired, you're out of luck. When I was between jobs, I tried volunteering. They weren't interested. The photos are scanned by people who don't know what they're doing: the desciptions in the meta info are vague at best, wildly inaccurate at worst. Color images are often scanned as black and white. The scans on the website are right-click disabled and at low res. They will not let you have higher res copies on digital media, only printed pictures off an ink jet printer. Basically, I think they're doing a reprehensible job at promoting an interest in history and the preservation of local history, and I'd like to do an end run around them. Unfortunately, it doesn't seem like there's a way to do this.
posted by keswick at 1:02 AM on May 23, 2004

The scans on the website are right-click disabled and at low res.

View source. wget $filename and you have the file.

You might try turning off JavaScript also.
posted by oaf at 4:32 AM on May 23, 2004

"Unfortunately, it doesn't seem like there's a way to do this."

Publicity. It sounds like you have a good story here. Contact the local paper. Public domain exists to benefit everyone. If group in physical possession of some public domain images is trying to keep the public from seeing or using that resource then they are, to the common sensibility, stealing.

All you want are digital scans so that you can put up a quality retrospective of images which are owned by the public at large.

They can stonewall, but they'll seem like jerks. or thieves.

What's the historical society? And the collection?
posted by y6y6y6 at 7:03 AM on May 23, 2004

Who funds this historical society? If it is primarily funded by private donors find a sympathetic one and approach him/her directly. Offer to rescan the photos with the assurance that you will put your results in the public domain.

If they recieve public funds take a good look at the charter, there is likely some sort of guarantee that documents will be made available to the public. You, my friend, are the public. As a last resort, consider raising the issue at a board meeting. It's possible that this is an issue that they simply haven't considered because nobody has ever raised it before.

Part of the problem is that these old codgers are proud of their prowess with a scanner and it's difficult to express that you are trying to help them without it coming off as critical. Be nice, be *really* nice and remember that while they annoy you, they believe that they are providing a public service and are going to be defensive when some young whippersnapper starts talking about metadata and resolution. They're probably doing the best they can and the biggest trick is going to be convincing them that you have something to offer. Demands aren't going to get you anyplace, these people are entrenched (I deal with town politics and organisations on a daily basis) and don't like change -- if your going to prevail, make them like you. This is more a social engineering excercise than a copyright issue.

The biggest hurdle may technological. It is understandable that they will not allow you to remove the documents from the premises and while they may be required to make them available, they certainly don't have to make their computer and scanner available. Providing you can finagle access, be prepared to cart your own hardware in to make the scans. Presented right, it's hard to see how they can complain about you plugging in a laptop and scanner while you access a public domain archive. Depending on funding, it may even be illegal for them to refuse you.
posted by cedar at 7:32 AM on May 23, 2004

The historical society is the Shasta Historical Society, and the collection in question is by Chester Mullen.
posted by keswick at 8:54 AM on May 23, 2004

This sort of holding hostage of historical cultural items in the public domain seems much closer to the original definition of piracy than anything Hollywood or the RIAA has.

One more instance where 'IP' and copyright law needs reformation.
posted by Blue Stone at 1:33 PM on May 23, 2004

This sort of holding hostage of historical cultural items in the public domain seems much closer to the original definition of piracy than anything Hollywood or the RIAA has.

Not at all. Just because the copyright on an image is in the public domain, it doesn't mean that the actual physical copy of it belongs to the public.
posted by oaf at 8:48 AM on May 24, 2004