Pimpin' the Public Domain?
August 21, 2009 5:41 AM   Subscribe

Someone wants to license a public domain photo from me - does that even work?

I am one of those guys who likes to scan old photos and magazines and put them online. The stuff from Popular Mechanics, nobody emails me about. The 19th century cabinet photos, a little moreso: about once a month or so, I get an email from an advertising agency or other company, requesting information and rates on licensing these photos. In the past, my attitude has been to say, just credit me, or ignore them if they feel spammy.

I understand that, in a rough gray area, converting these photos by digitizing them might kinda possibly make them a derivative work, but not really. Beyond that, they're old enough to be public domain, and really, since I'm not the original artist, I wouldn't have any copyright ownership of the originals anyway. I "own" these images in that I've got the physical copy, but I have no claim to the copyright...which doesn't exist for these in the U.S. anyway.

Still, since I'm the only person with this image, I'm still a gatekeeper of sorts, and I put a high enough resolution version of the images online that they wouldn't have to go through me, but they're covering their butts and they are required to ask, and if there's a revenue stream here I'd hate to ignore it. On the other hand, the AP got a crapstorm for expecting licenses to be paid for public domain things, so I don't want to be "that jerk with the old photos," either. The reason I didn't find anything related in previous AskMetafilter searches is usually people are asking copyright questions to stop somebody from duplicating their stuff, or use something without securing rights. YANAL, yes, but my question is: is it possible, legal, ethical for me to set up a form and a rate sheet on my website, and expect people to follow it when licensing these public domain photos?
posted by AzraelBrown to Media & Arts (17 answers total) 1 user marked this as a favorite
I think you can ignore the AP crapstorm - that's more "look what I can make their tool do" nonsense than anything relevant in their real world (not that far from the guys who walked into a computer room at my school, typed "fuck" at the login prompt, and LOL:d until we had to throw them out).

As for your actual question, IANAL etc, but you can definitely charge a fee for your scanning effort, and for access to your high-resolution data files. Someone who is AL can probably elaborate on how museums (who do this all the time) enforce their various usage restrictions for photos and other digital goods.
posted by effbot at 5:52 AM on August 21, 2009

I could see where you could ethically charge for providing an image if they wanted you to spend time providing a high-quality scan of an image, but beyond that personally I find it "iffy" charging for the use a photo that's public domain... IANAL (IDEGTU) (I didn't even go to University), so I may be missing a whole shed-load of facts :)
posted by mahke at 5:56 AM on August 21, 2009

By very definition, public-domain works are works which no one has a license over and no one has a right to charge for. And thus by very definition any works which someone has a right to demand compensation for in and of themselves for are not public-domain.

From something I looked up recently at the US Copyright Office:
Where is the public domain? The public domain is not a place. A work of authorship is in the “public domain” if it is no longer under copyright protection or if it failed to meet the requirements for copyright protection. Works in the public domain may be used freely without the permission of the former copyright owner.
You're free to do what you're talking about - but then those images by definition will not be in the public domain. There is no such thing as licensing works which are in the public domain, and if you say to one of these companies which are contacting you, "oh sure, that image is in the public domain, and my licensing fee is x," they'll say "oh, that's nice!" and go ahead and copy the image and use it without paying you a dime, since they are free to do so.
posted by koeselitz at 6:11 AM on August 21, 2009

The original photography might be in the public domain, but is your scan of it?

I don't know, I brought it up hoping that someone who would will come along and answer.
posted by theichibun at 6:16 AM on August 21, 2009

The original photography might be in the public domain, but is your scan of it?

Still NAL, but this article points to the Bridgeman Art Library v. Corel Corp. case, where the court decided that a high-quality copy of a public domain work is indeed still in the public domain.
posted by effbot at 6:23 AM on August 21, 2009 [1 favorite]

Although it may be that scans of public domain pictures are also legally considered in the public domain, there are enough institutions which do not follow that precedent that you could easily license the scan without being singled out as "that guy". Do it. Putting up a rate sheet online would probably be asking too much but if someone asks to license it then of course, ask for standard rates.
posted by JJ86 at 6:38 AM on August 21, 2009

If the original is public-domain, the only cards you hold (though they are good ones) are your expertise and the ability to provide a service faster, better, or cheaper than they can do it themselves. It sounds like you'd be on solid ground to charge them a service fee for making a digital copy to their specs and leaving the photo content out of any contractual arrangements.
posted by TruncatedTiller at 6:38 AM on August 21, 2009

If you're in the USA, I don't think you own the images.

A related case was in the news fairly recently. The UK's National Portrait Gallery makes money by licensing images of the paintings in its collection. The images in the paintings themselves are public domain and therefore can't be charged for but, under UK law, the high-resolution scans/photographs are new works and can be copyrighted.

The trouble started when someone in Wikimedia took a load of these images and posted them to Wikimedia Commons. They think they can do this because, under US law, the scans/photos of public domain images are not new works, and are therefore in the public domain just like the originals.

Both UK and US law are very clear, so if you're in the UK the answer is that you own the images and can license them. If you're in the USA the answer is that you've merely made a copy of an image that no-one can claim to own.

The resulting dispute between the NPG and Wikimedia is purely about whose law should apply: US law where the copied images are now hosted, or UK law where the photographs were originally taken and copied from.

Quoting Wikipedia:
The United States District Court case Bridgeman Art Library v. Corel Corp. (in which Bridgeman Art Library sued the Corel Corporation for copyright infringement for distributing copies of digital reproductions of public domain paintings sourced from Bridgeman on a CD-ROM) established that "a photograph which is no more than a copy of a work of another as exact as science and technology permits lacks originality. That is not to say that such a feat is trivial, simply not original."[11][12] As a result, reproductions of works that have fallen into the public domain cannot attract any new copyright in the United States.[11][12] As such, local policies of the Wikimedia Commons web site ignore any potential copyright that could subsist in reproductions of public domain works.[5] However, British case law can take into account the amount of skill and labour that took place in the creation of a work for considering whether it can be protected by copyright in the country.[5]

There's also some informed discussion on slashdot here and here.
posted by metaBugs at 6:42 AM on August 21, 2009

You cannot charge people a licensing fee for the images, but you can charge for the service of delivering a high-quality version of it.
posted by blue_beetle at 7:01 AM on August 21, 2009 [1 favorite]

Let's just say that there are quite a few people making reasonable money out of selling public domain (and not just "expired copyright", but true "public domain") books, movies, software, etc. They have every right to demand compensation for this; what they don't have the right to do is stop anybody else from doing it too - or even undercutting them by giving it away - with the same property.

This is exactly right. If the image is in the public domain, you do not have a right to control its use or prevent others from using it. Scanning it, courts have repeatedly held, does not create a derivative work subject to new copyright. HOWEVER, and this is important, you have added value by finding the image in the first place, and it is perfectly fine for you to charge for your "eye" as a designer and finder of images. Antiques buyers employ "finders" to do exactly this with furniture.

Put up much lower resolution scans and offer higher resolutions scans at a fee, not for the image, but for your time in locating them. As you said, you are a gatekeeper. If someone likes the image and wants to take the time to go find his own copy, fine, you can't stop that. If, however, he prefers to take advantage of your time and effort in tracking down the source material, he should pay you. This is, of course, how Red Hat and others make a nice living selling (free) Linux. Not everyone has time to compile.

IAA(IP)L. IANY(IP)L and this is not legal advice.
posted by The Bellman at 7:04 AM on August 21, 2009

By very definition, public-domain works are works which no one has a license over and no one has a right to charge for. And thus by very definition any works which someone has a right to demand compensation for in and of themselves for are not public-domain.

This is of course, utter crap. Public domain works are works over which no one has an *exclusive* license but *everyone* has the right to charge for. Each time I go to the bookstore and see copies of "Pride And Prejudice" or "Huckleberry Finn," I notice that the people publishing them actually do do demand compensation! They have the right, just not exclusively so.

But as to the original post: the person willing to license this public domain image is, in essence, buying a form of insurance. Insurance that the image is truly public domain, and that if it's not, they've properly licensed it, or indemnified themselves to a degree, by dealing with someone who asserts the right to license this image . . . which you do in fact have, because *anyone* can act as a licensor for public domain images!

The bottom line is, they came to you. They offered to license the image. You'd be a fool not to do it, and if you feel awkward doing it, then I'd recommend taking the fee anyway and donating it to a good cause. You did find and scan the image, and you can make it easily available, and for some parties, that's worth money in itself.

my question is: is it possible, legal, ethical for me to set up a form and a rate sheet on my website, and expect people to follow it when licensing these public domain photos?

It's possible, it's legal, it's ethical. To "expect" people to follow it is a bit iffy if they know these images are public domain - you don't really have much power to assert sovereignty over the images - you're willing just hoping that good faith will get you paid.
posted by Dee Xtrovert at 7:33 AM on August 21, 2009

What blue_beetle said. You are charging for your services as curator of interesting images, maker of high-resolution scans, retoucher of old photos, etc. You did the work of finding cool old images and making them usable in a modern production environment -- you can get paid for that. But they don't need a license to use the photo, and you can't grant such a license anyway. If they want to go to the trouble of getting the same photo somewhere else, there's nothing you can really do about that. But I think you'll find that most agencies will be happy to just pay you your fee and be done with it. Properly managed, I think you could make a pretty cool business for yourself out of this.
posted by spilon at 7:36 AM on August 21, 2009

[comment removed - tard language not okay for askme, period.]
posted by jessamyn (staff) at 7:51 AM on August 21, 2009 [1 favorite]

Copyrights are designed to stop people other than the owner from "exploiting" the works they created. Once its expired etc then anyone can exploit the works.

ie its perfectly legal for you to sell scans of these old pictures / photos.
posted by mary8nne at 8:15 AM on August 21, 2009

It would strike me as sleazy if your site had threatening, misleading legal language claiming a copyright that doesn't exist. It would strike me as a little odd, but not necessarily sleazy, if the site just said "photos can be licensed for $XX." It would strike me as perfectly reasonable if the site said "These photos are in the public domain, you can use them as you wish. A high-resolution scan will be provided for a service fee of $XX."
posted by lore at 8:24 AM on August 21, 2009

Thanks all: it sounds like I was thinking of it too much in a copyright way, when it should be more of an EULA thing. I provide a public-domain image, and if they want to use it, they agree to purchase a high-resolution image from me, and they can "license" it in that they get an official document which explains that I agreed to give them that particular file for whatever use they so choose. IANAL either, but this is more transactional than a binding contract, and I need to make sure I'm not selling images that aren't public domain.

If, from there, the image finds its way to Flickr, and onto some guy's "royalty-free image CDROM," and gets captioned for Married to the Sea, I can't do much about it, but, hey, I got my $10 or $20 for it, maybe from a couple different people, and that's good enough for me.
posted by AzraelBrown at 2:15 PM on August 21, 2009

If you do this it will tarnish your virtue, but I think you ought to know what you could do, if you had a mind to do it.

Scan the photo with a border you design - even a plain one, say a couple of lines. It is now a new work, albeit one partially derived from another. You now have the copyright. Nobody can remove that status from it, even by cropping out the border. All that would accomplish is create a derivative of your copyrighted work. So now you can sell them a limited license to use your work and you have strong statutory protection if they breach your copyright.

Like I say, it will tarnish your virtue.
posted by Joe in Australia at 5:03 AM on August 23, 2009

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