Public Domain Photos

February 27, 2008 10:25 AM

I have a website where I upload all of my photos and license them as public domain. Each photo is individually listed as public domain, each has a link to it's Creative Commons "license" as a work in the public domain, and the site is rather obviously all about photos in the public domain. The problem - Large companies are taking my photos and, without editing them, putting their copyright on them. Is this evil, and how nasty should I be about it?

Here's an example. In the nature scenes category alone most of the images they use are mine. There were all taken from my site 100% unedited as far as I can see. Now........ They do put my name on some of them, but not the website, and while some mention me many don't.

However - My issue is just the copyright notice. I don't mind them using the image, even if they don't give me attribution. But putting the images in the public domain means a lot to me. Having a large corporation place their copyright on them seriously bothers me. It is my hope that people will take the images and do wonderful things with them. And that includes taking them directly from American Greetings, stripping off their copyright, and using them for any purpose.

I understand that I lose control of the photos once I place them in the public domain. I'm fine with that. But I want the image to stay in the public domain. In other words, everyone loses the same control over the image, not just me. And I understand that creative application of the image could result in a very legitimate need for copyright.

There are other examples, some even more gratuitous. But this is the latest example and the one that is making me think I need to take action.

Can a company take works in the public domain and assert a copyright, especially if the work is unedited?

Please note - I'm avoiding a self link, but my site shouldn't be hard to find by even a cursory attempt. I'll be happy to link to the original location of the photo linked above if such a self link is deemed appropriate.

posted by Ragma to law & government (28 comments total)

Personally, I'd love to see the site where your photos originated.

Beyond that, I have no credible answer to your question other than a "good luck"!
posted by yellowbkpk at 10:34 AM on February 27

It is actually somewhat murky whether there is actually any way to intentionally put a copyrighted work into the public domain. The only way permitted by the law is by the expiration of the copyright; the law does not provide any means for you to waive your rights. From a legal standpoint, then, it is entirely possible that you still own the copyright even though you intended to put the works into the public domain. The matter has not been decided in court as far as I know, though of course people behave as though a disclaimer of copyright does the trick, so if it ever does go to court, this practice could be upheld. It's kind of a toss-up.

But sure, they can claim a copyright. It wouldn't hold up in court, of course, but it could cost you a substantial sum to take it there.

Note that there is something called a "compilation copyright." That is, American Greetings can claim a copyright on their site as a whole even if the individual creative works that make it up are uncopyrighted or copyrighted by others. This is intended to prevent another company from copying their site wholesale, changing a few logos, and calling it their own. I don't see copyright notices for the individual images, so this is probably what they are actually doing here.
posted by kindall at 10:48 AM on February 27 [1 favorite]

Oh, forgot the obligatory disclaimer: I Am Not A Lawyer.
posted by kindall at 10:49 AM on February 27

Maybe this article?
posted by zabuni at 10:50 AM on February 27

Can a company take works in the public domain and assert a copyright, especially if the work is unedited?

No. However, do they actually claim that your individual images are copyright or are you concerned about their blanket statement that the whole site is copyrighted? I did not register so it wouldn't let me download and image. In either event they would appear to be asserting copyright over your image. I would write to their general counsel and complain. From their last annual report that would be Catherine Kilbane. I would send your letter via registered mail and request an answer within ten days from receipt. You could hire a lawyer and all, but this is such an obvious oversight that you probably won't need one. I would ask for each of your photos to be acknowledged as public domain and you might as well also ask them to at least put your name in as the photographer.
posted by caddis at 11:00 AM on February 27

My gut reaction (IANAL) based on what I've read suggests that work you explicitly license as public domain cannot be copyrighted by someone else if they have not transformed the work in some way. For example: the text of Jane Austen's Pride & Prejudice is in the public domain. However, a particular publisher's edition of P&P is protected under copyright, meaning that I cannot photocopy the book and sell my own copies. I could, however, type up my own edition of P&P, print and sell that. I'm not quite sure how this works when the work is a photograph, however.

My strong suggestion to you is that you contact someone at Creative Commons. I believe they can put you in touch with volunteer lawyers, and more than likely you can get help there in drafting some sort of cease-and-desist letter alerting the companies that you are aware of what they are doing (assuming that's what the legal advice says).

Good luck, and good for you for supporting public domain!
posted by DiscourseMarker at 11:02 AM on February 27

There is a lot of information at the Creative Commons website; this question seems relevant and they also have links to possible legal resources.

To avoid you having to self-link, although I would think it OK in this context, is this your site?
posted by TedW at 11:02 AM on February 27

Not that it does any good, but have you considered switching to a CC-Share Alike? That keeps your photos freely available and requires people/companies using it to place your notice on there, rather than a boilerplate © notice.

If I can take a stab at it - the problem here is probably The Lawyers. They know that the law is murky, the chance that they will get called out on it low. In light of this, they're happy to rubber stamp their copyright on anything and everything. It's how lawyers do business and how they stay in business. That's just a WAG though. I'm guessing the card designers are simply following The Rules handed down to them and don't have the power to make exceptions when it comes to your works.

Which are very nice, btw. You should give us a link. :)
posted by unixrat at 11:04 AM on February 27

"Personally, I'd love to see the site where your photos originated."

If you do a Google search for "public domain photos", I'm the first result. Interestingly the second result is a site that mostly just repackages my photos.
posted by Ragma at 11:05 AM on February 27

"I would think it OK in this context, is this your site?"

Yes. Sorry to appear cryptic. Here's the original.
posted by Ragma at 11:10 AM on February 27

I pat you on the back for putting your work out there for others to use. That being said, even if you want anyone to use your images, asking for a copyright notice with your name on it is not a bad idea. It's simple protection.
posted by Taken Outtacontext at 11:14 AM on February 27

Yeah, they're clearly putting their own copyright symbol, and claiming copyright, on his photos directly. See this link, which is the American Greetings high-res download of this photo, which is without a doubt this photo of Jon's. I see that they give a cursory attribution at the bottom left, but then claim copyright at the bottom right... makes no sense.

I don't have any legal answers, but this just isn't right -- I'd start by finding a number to their corporate offices and asking them explicitly to stop. If they balk, or just as an alternative, you could also just make a subsite of yours engineered to get reasonable Google reach that explains in clear terms that these are the same photos as American Greetings uses, and that people can get them for absolute free from you and do whatever they want with them. :)
posted by delfuego at 11:18 AM on February 27

"have you considered switching to a CC-Share Alike?"

Still mulling over the over comments and links, but I wanted to address this separate issue. I have considered it and find it not to my liking. Ditto for other Open Source type licenses. Having had these photos out there for years and seen some of the incredible uses they've been put to I really prefer the "tossing them to the wind" strategy. A large percentage of my email is people asking me for a legal clarification about what I mean by "you can use these for absolutely anything without asking". If I added a more restrictive license I'd shut down too much potential use. I don't have time to answer the mail I get now.

Additionally the vast majority of the use is for school reports, church newsletters, and personal mementos. I don't want those folks concerning themselves with giving notice.
posted by Ragma at 11:22 AM on February 27

Well, I can't help you, but it looks like I just found a great source for new desktop backgrounds!
posted by radioamy at 11:51 AM on February 27

Yeah, they're clearly putting their own copyright symbol, and claiming copyright, on his photos directly. See this link, which is the American Greetings high-res download of this photo, which is without a doubt this photo of Jon's. I see that they give a cursory attribution at the bottom left, but then claim copyright at the bottom right... makes no sense.

Uh oh, that is a no, no.

17 USC Sect. 506(c) Fraudulent Copyright Notice. - Any person who, with fraudulent intent, places on any article a notice of copyright or words of the same purport that such person knows to be false, or who, with fraudulent intent, publicly distributes or imports for public distribution any article bearing such notice or words that such person knows to be false, shall be fined not more than $2,500.

posted by caddis at 12:00 PM on February 27

Also, despite what the law says, some people.... obviously don't care.

To prevent this from happening in the future, although it might cost you a few $$ to do, you could use digital watermarking, from companies such as Digimarc. I think they even provide free watermarking, although to use their spidering service that hunts the web for things such as this company you have discovered, abusing your images, costs $$. I have heard it's pretty tough to get these marks out of a pic if you embed it properly...

I would think asking them to cease and desist, etc, if they stole an image like that, would give you a lot more ammo.
posted by bitterkitten at 12:26 PM on February 27

Without regard for the legality or appropriateness of it, I would guess that American Greetings has a content management system that automatically inserts those marks into the images. It may be difficult or impossible (or at least an extra step) for them to prevent it.
posted by crickets at 1:27 PM on February 27

Ragma, major props to you for what you're doing with your photos. I understand your "throwing it into the wind" desire, and not wanting to make it complicated or add watermarks or put requirements around people being able to use your images. I think that's brilliant.

And like you, I am not a fan of Creative Commons licenses - they're broken in a number of ways, often by the licensor in implementation, in fact.

In the case of American Greetings, it's pretty clear they are asserting copyright on images to which they do not, in fact, own the copyright. They are, in short, stomping on your good will because they are big and you are little.

I personally would not be inclined to let them get away with that. I'm not a litigious person, and in a case where Joe Shmoe just misunderstood or or did something like this without really thinking about, I wouldn't consider doing anything except maybe sending a friendly mail. In this case, however, they are a major brand and have in house counsel and a keen understanding of copyright. They are being asshats and honestly, I'd be pissed and be looking to do something punative. Apologies from huge corporations don't mean a lot to me, and I suspect they don't mean a lot to the company either. Money does.

I'd follow up on the link Caddis sited, and look for financial compensation. If you yourself don't care about the money, that's cool, but the charity of your choice will.
posted by DarlingBri at 1:37 PM on February 27 [1 favorite]

Can't you still let "Anyone use these for absolutely anything" While still maintaining the copyright to these? Why don't large corporations fall under "anyone".

1. Copyrights don't mean the owner of the copyright is the creator of the work. So the fraudulent copyright charge falls flat. (Evidenced by the simple facts that copyrights can be bought and sold)

2.American Greeting do in fact own the copyrights because they were not previously copyrighted, unless the OP left that part out.

3. American Greetings copyrighting these pictures is less about them taking credit than preventing others from using the same pictures as they do, thereby diluting their corporate identity.

since you can choose who may copy or benefit from your work under copyright the simple answer is to copyright them under your name.
posted by Student of Man at 2:34 PM on February 27

If I was wrong and you did indeed copyright your works and then released them under a creative commons liscense, then you may have a case.

There seems to be different CC Licenses. Your other choice is to re-release your works under a Creative Commons Noncommercial license.
posted by Student of Man at 2:50 PM on February 27

1. Copyrights don't mean the owner of the copyright is the creator of the work.

This is true.

So the fraudulent copyright charge falls flat.

This is not. AG does not hold the copyright to these, and are claiming that they do. The fact that AG is not claiming to be the creator of these works does not mean they are correct in claiming copyright.

American Greeting do in fact own the copyrights because they were not previously copyrighted

This is absurd. I can't just go and find something that's in the public domain (perhaps something that's never been copyrighted, because it existed before copyright, such as one of Shakespeare's plays) and claim copyright on it.

unless the OP left that part out.

Plus, ragma did hold the copyright on them at one point anyway. Copyright is effective as soon as a work is "fixed in a tangible medium," meaning ragma owned the copyright on these pictures as soon as he took them. No further action on ragma's part was necessary. As kindall notes, the act of releasing them into the public domain is somewhat murky, but the law is quite clear that ragma initially owned the copyright.

American Greetings copyrighting these pictures is less about them taking credit than preventing others from using the same pictures as they do

AG has no legal right to prevent others from using ragma's pictures, as much as they might like to.
posted by DevilsAdvocate at 2:59 PM on February 27 [1 favorite]

If I was wrong and you did indeed copyright your works

All creative works are copyrighted at the moment they are "fixed in tangible form," so yes, all of Ragma's photographs were copyrighted at one time. (And may still be, given the gray area of waiving rights.)

I didn't know the bit about fraudulent copyright notice that caddis quoted. But note that it does not require that the work be copyrighted by someone else. I see nothing in that statute that would prevent the same penalty from applying to someone who puts a copyright notice on a public-domain work. The trick would be trying to prove that the intent was fraudulent.
posted by kindall at 3:01 PM on February 27

I got an email from their Corporate Counsel. She seems very open to my concerns and willing to make the needed changes. Interestingly she seems confused about what the real issue is, as if she didn't read the thread. But I have every expectation they'll handle things properly. I'm happy.

Also notable - She responded to this thread rather than my emails. Once again AskMe influences corporate policy for good.

Thanks all for the information and suggestions.
posted by Ragma at 5:11 PM on February 27

What did you ask of her Ragma? what was her reply? Is this a case of corporate abuse? did they fess up?
Did she put up a fight?
tell me more
tell me mooore
tell me more
tell me more.

=0)
posted by Student of Man at 5:31 PM on February 27

I'm not likely to pass on what she said. They seem very willing to make it right. That's cool. And that's enough.

If there are juicy details, I'll let you know. I doubt there will be juicy details.
posted by Ragma at 5:36 PM on February 27

Here's what I'm wondering. Could American Greetings have said "hey look, we have our copyright on this and you're hosting this image on your webpage - you need to take that down!" I mean, it's nice that American Greetings wants to play nice now - now that you've noticed what they did. However, it makes me wonder why they didn't wait until they had an agreement with you first. There are other public domain images out there and I'd be shocked if American Greetings didn't already have a large photo library to work with.

But I'm mostly curious at whether a large company could do this and know they could get away with it due to the legal costs involved in trying to set things right through the system. Can Ragma prove that the photos are actually his once they've been turned loose like he has done? In the past there was this one guy who was selling cds of Free Stock Photos for $50 plus - and they were 95% images from Ragma's site. It's always interesting to see what happens when you put something into public domain...

(Disclosure: I am Mrs. Ragma, with all the biases that come with that.)
posted by batgrlHG at 6:36 PM on February 27

Okay. Happy ending.

So while everyone was clamoring to brand American Greetings as a big bad corporation they have been working with me to make this right. I've been in contact with their corporate council and she is setting things right to my satisfaction. In fact she's gone out of her way to make it right. I can say, without exaggerating one bit, they are being extremely cool about the whole thing.

She thinks an honest mistake was made, and so do I. If you look at the smaller photos you'll see they have the attribution to me, but they lack the copyright. Which is fine. They use my name and that's much more than they need to do. It's pretty cool in my humble opinion. But the large versions have the copyright added, off-center and in a different font. I suspect those were added much later. Given that probable chain of events the person who added the copyright would have no idea the photos were public domain rather than works for hire.

American Greetings is going to make it right. And that's about 100% more than I get from others who abuse my licensing.

I also find it interesting that they found out about my concern through AskMefi. Truly one of the best sites on the net.
posted by Ragma at 12:09 PM on February 29 [1 favorite]

Very nice, and it is always nice to see corporations take a little extra effort to do the right thing. Mistakes were made, but don't we all make mistakes? The important thing is that they are correcting them. Good for American Greetings.
posted by caddis at 1:12 PM on February 29