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"Stealing" public domain photos
Is it ethical and/or legal to just grab and use other people's scans?
Bolotomus




msg:3358583
 12:58 am on Jun 5, 2007 (gmt 0)

Here is a very simple question, and I have scoured the internet to find a definitive answer. To date I've come up empty handed. Maybe somebody here can shed some light.

BACKGROUND: As most of us know, photographs published before 1923 are almost always within the public domain. Many websites feature such photographs. Rarely are the graphics that you see on websites scans of the original photo--commonly, they are scans from books or periodicals which reproduced the original photograph.

Making a good digital scan is not a trivial task. The webmasters who do this job, especially with hard-to-find materials, do the internet a great service by providing these copyright-free images for others to use.

QUESTION I: Is it legal (in the USA) to download a public domain photograph that another person has scanned for publication on my website--or am I forced to go and find a copy of the photograph myself, from a library or what not, and make a "fresh scan"?

QUESTION II: Assuming the answer to (I) is "yes", is it ethical? Do I have any responsibility to give credits the person who did the original scan? If the person who did the original scan writes me an angry email telling me to remove it, should I feel obligated to do so?

DETAILS: I run a website which has many photographs of a historical nature; many (if not most) of these photographs were first published prior to 1923. The typical procedure for processing the photos is to first find them online, then to process them as necessary in Photoshop etc., then to publish them on my website. Whenever there is any doubt of the public domain nature of the photograph, I have always been very careful to secure proper permission to use the photograph.

Recently I've had a bit of trouble from a certain webmaster who has a site with enormous volumes of public domain photographs. This individual owns an extensive library that gives him access to some photographs which are extremely hard to come by. If you search the internet for these photographs, the only digital reproductions you will find come from his website. He recently wrote to me pointing out that we have used one of his photographs and asked to remove it. As a courtesy, I did, even though I believed that I was not legally in the wrong.

Now, he's written to me again, this time with an enormous list of photographs that are found on my website. He's essentially asking me to remove 20% of my photograph stock on the grounds that he was the one who did the original scanning work. In almost all of these cases, I did not acquire the photographs from his site directly, although it's entirely possible that I copied them from a site who copied his scans. Sometimes the size is different, the gamma settings are different, even the cropping is different, but he remains convinced that we must have "stolen" his scanning efforts, an assumption he probably reaches due to the extreme rarity of the material. The harder I look for telltale signs, the more I start to believe that he is correct in his assertion that he was the original source of the digitization process.

In some cases, you can tell undoubtedly that he was the original source of the digitization process, due to some graphical or physical artifact that was left behind. E.g., a small tear in the page of the book shows up in his scan (since his own book has a tear) and this tear is visible on other websites which have "stolen" his digitization efforts. In other cases you can tell that it comes from the same source, simply because of the way that the photograph is rotated and/or cropped.

At no point has he claimed ownership of the material, but he feels that since he was the one--the only one--to make a scan of this rare material, that he can in some way control its dissemination. I.e., if he doesn't give me permission to use it, I cannot--and what's more, he can prove that our image comes from his exact scan, due to the aforementioned artifacts.

An alternate point of view is that if you scan a public domain image and let it loose into the world, you have done the world a favor, and you forgo any and all rights to control its dissemination. After all, why should it be my job to be an expert at studying digital artifacts? Why should I worry about who originally fired-up the scanner?

Any help would be appreciated! Thanks in advance.

 

Marshall




msg:3358593
 1:13 am on Jun 5, 2007 (gmt 0)

Bolotomus,

You are basically asking a copyright question (see www.copyright.gov). [u]IF[/u] this individual copyrighted his book and hence the photographs therein, or his web site, you should ask permission and he could have a case. You can research this on copyright.gov. I seriously doubt anyone would publish a book without a copyright. Look at the problem Google is having digitizing all those libraries.

Woz




msg:3358600
 1:21 am on Jun 5, 2007 (gmt 0)

You may find that while the original photo/iamge is out of copyright, copyright may now exist in the new scan of said photograph. I suggest you check with the Copyright people to confirm.

Onya
Woz

jtara




msg:3358603
 1:24 am on Jun 5, 2007 (gmt 0)

The usual advice - consult your attorney.

This has come up here before, so do a search.

I recall having pointed-out that the San Diego Historical Society does this guy one better - when you purchase a historical print from them, they slap their own copyright notice on it.

Some here argued that they really have no right to do this. Others that they do. Not sure if there was any consensus.

Although we were discussing a physical print, similar principles apply. There's art and judgment in making a print. One could argue that it is a new work.

Syzygy




msg:3359539
 11:32 pm on Jun 5, 2007 (gmt 0)

If you have the original photo - in whatever legitimate form - and, to the best of your knowledge, it's copyrights have ended, then do proceed to use the image in whatever way you so desire.

If others are using the same public domain image as you and are then claiming these to be their own, based on the fact that they've done a bit of photoshop work that slightly changes the "original" - thus creating an original and/or derivative work - then they are wrong to stop you using the original, unless - and here's the rider - you have used their version/derivative work as your source...

You need to clarify which version of the "original" are you using.

By the way - are you actually "downloading" images from other websites without permission, solely based on the premise that you think public domain rules apply? Please do clarify...

Usual Disclaimer: I've no legal knowledge to back up any claims here and can hardly spell my name on a good day - please do seek advice from properly qualified legal counsel :-).

Syzygy

[edited by: Syzygy at 11:34 pm (utc) on June 5, 2007]

Marshall




msg:3359573
 12:38 am on Jun 6, 2007 (gmt 0)

While "content" may be public domain, the "medium/format" by which it is presented can be copyright protected.

Bolotomus




msg:3359935
 12:01 pm on Jun 6, 2007 (gmt 0)

jtara wrote: The usual advice - consult your attorney.

Of course, I did consult my lawyer, but that's a cop-out answer. If 10 people asked 10 different attorneys this same question, they'd get 10 different answers. Sure, my lawyer gave me an answer, but copyrights are not his specialty, and he didn't do a great deal of research--he just stated his opinion. I'm looking for a definitive answer--hopefully with an actual court case that covered this ground.

Woz wrote: You may find that while the original photo/iamge is out of copyright, copyright may now exist in the new scan of said photograph. I suggest you check with the Copyright people to confirm.

Well that hits the nail on the head right there--a very quick way to phrase my longwinded post. Can a specific scan of a copyright-free work suddenly be endowed with copyright status, or not?

Now when you say "the copyright people" I assume you mean www.copyright.gov, which Marshall suggested. As I said, I've been searching for a definitive answer to this questions for years. It would be silly to think that I haven't scoured that website for the answer.

I have yet to find this specific issue discussed in any detail. However I am starting to draw conclusions based on its omission. Either you own something, and you can copyright it, or you just "come across" something, and you can't copyright it. You can't copyright your grandmother's dairy you come across in the attic, unless she bequeathed it to you. Why? Because you don't own it. (That issue is discussed in detail in the copyright.gov FAQ.)

However the action of scanning is a new effort, and it's conceivable to argue that it constitutes a new composition--much like a skilled photographer taking a snapshot of a Michealangelo sculpture. If you look at this this way, then the person who presses the "scan" button on his scanner might be allowed to copyright his product.

I have my own opinion on what the answer is, but I'm not sure, hence the purpose of my post. I think the answer to this involves how much work is really done. Consider the photographer who sets up the lighting, takes a photo of the Venus de Milo, and processes the picture in his own darkroom--this guy gets full copyright protection. But the guy who scans a number of Civil war documents on his $50 Office Depot scanner, he gets little or no protection. This is because one action is actually an artistic creation while the other is just an archiving procedure like any library would perform. In some situations this might come into dispute and a courtroom would be required to make the judgement call. This is just my educated guess based on what I've seen.

DamonHD




msg:3359988
 12:56 pm on Jun 6, 2007 (gmt 0)

Hi,

I'd say that it's probably a live legal topic with many grey areas and jurisdiction-by-jurisdiction differences of opinion and even case law.

I think that you've summed the situation up quite well. You're almost an expert "qualified by experience".

Why not write a nice letter to some law profs with an interest in the area, such as Lessig. Their responses might even be of value to you in court if you got that far.

Rgds

Damon

slawski




msg:3360010
 1:15 pm on Jun 6, 2007 (gmt 0)

However the action of scanning is a new effort, and it's conceivable to argue that it constitutes a new composition--much like a skilled photographer taking a snapshot of a Michealangelo sculpture. If you look at this this way, then the person who presses the "scan" button on his scanner might be allowed to copyright his product.

Nope. No artistic effort there whatsoever in the scanning - especially if it was an effort to reproduce as faithfully as possible.

Bolotomus,

The battle that you face has been fought before. You may want to find a new attorney who either knows something about copyright, or is willing to do the research to find the supporting caselaw.

Woz




msg:3360015
 1:18 pm on Jun 6, 2007 (gmt 0)

>I think the answer to this involves how much work is really done.

I would beg to differ. It is not "how much work" that is important, but that the work is indeed done at all. Copyright is not about qualitative values, rather the act of creation.

I am not an expert in copyright, and I am really guessing when it comes to graphics etc, but I do know that in the Music field there are two main intellectual properties:- Copyright in the work created (song, orchestral composition, etc.,) and then Mechanical Rights to the recordings of said works. Basically, I could write a song and you could record it. I would own the rights to the song, you would own the rights to the recording of the song. (Of course, there are other hoops to go through in this situation but that is the bare bones of it.)

I am assuming (dangerous) that the same would apply to the photograph, where someone may/may-not own the rights to the photo itself, but whoever scanned it (regardless of the amount of work or quality) would own the rights to that particular scan of the photograph.

But then, as I say, it would be best to clarify this with the copyright(.gov) type people.

Onya
Woz

thecoalman




msg:3360042
 1:35 pm on Jun 6, 2007 (gmt 0)

QUESTION II: Assuming the answer to (I) is "yes", is it ethical? Do I have any responsibility to give credits the person who did the original scan? If the person who did the original scan writes me an angry email telling me to remove it, should I feel obligated to do so?

Being that I'm in a similar situation with possession of such photos my opinion may be slightly biased here. ;)

I have about 40 images all scanned from 8x10's that I spent a lot of time scanning and digitally restoring. It is one of the main attractions of my site and I get quite few compliments and thank yous via email. I'll even offer a 300dpi scan if I get a "My Grandfather Worked there" type e-mail. These images should be available for the public which is why I offer them, I could certainly have just kept them under wraps but they wouldn't be doing anyone any good sitting in a filing cabinet.

However I certainly wouldn't be too happy to find them elsewhere.

a) It's going to dilute the attraction to my site.

b) I don't want to see someone profiting from my hard work.

Just my opinion and as I said it's probably biased, I'd suggest you try and work a compromise out with the person such as them allowing you a few images and offering a link to their site or something of that nature. If you can't work something out then I'd suggest you respect their wishes whether you're legally obligated or not.

Bolotomus




msg:3360761
 3:46 am on Jun 7, 2007 (gmt 0)

>I think the answer to this involves how much work is really done.
I would beg to differ. It is not "how much work" that is important, but that the work is indeed done at all. Copyright is not about qualitative values, rather the act of creation.

I agree 100%, this is just a case of my sloppy and imprecise wording and not a difference in our opinions. The idea I was trying to convey is, that if the work done amounts to a creative process, then it becomes copyrightable. In most cases, I would be inclined to agree with slawski's assertion that there is "No artistic effort there whatsoever in the scanning"--however, scanning (especially with very old documents) often involves restoration. It's possible to take a heavily deteriorated potograph from the Civil war era, and bring it to life as if it was taken yesterday on a digital camera. This is a painstaking process which is absolutely a creative effort, whether or not courts recognize it as such.

Anyhow, we've got the entire spectrum of opinions here and no firm answers. I didn't really expect anything else. I agree with what DamonHD says, this is a most likely a "live legal topic" and the supporting caselaw simply doesn't exist yet.

Thanks for your help (everybody). If somebody learns something fresh on the subject, please stop back to post it here.

zett




msg:3363304
 7:54 am on Jun 10, 2007 (gmt 0)

The photograph itself (i.e. the original work) may be out of copyright and in the public domain.

A scan of this photograph, however, that was made at a later point in time may still be subject to be protected by the copyright. I.e. you may not just grab a new/fresh scan of a work in the public domain, because you are not grabbing the work itself but a new digital representation of it. Getting hold of the original, the creation of the scan, and its post-processing and publishing, all this costs money, and the ones who invest this money will want to see their investment protected.

But as always - IANAL, please consult your lawyer. ;-)

topr8




msg:3363314
 8:23 am on Jun 10, 2007 (gmt 0)

this question isn't grey at all.

the answer to the OP's question 1 is NO

this is why certain first editions of books reach such high prices shortly before they are about to become 'public domain'

dcheney




msg:3363318
 8:30 am on Jun 10, 2007 (gmt 0)

QUESTION II: Assuming the answer to (I) is "yes", is it ethical? Do I have any responsibility to give credits the person who did the original scan?

I think (but don't know) the answer to question 1 is no.

That being said, the answer to question 2 is just obvious. You want to take someone else's work (i.e., creating the scan) and use it for profit and not even bother to mention who you stole it from?

Simply put, get the original work and scan it yourself.

Marshall




msg:3363334
 9:05 am on Jun 10, 2007 (gmt 0)

I think the title of this post, Stealing..., says it all. If you have to ask, it probably is.

Marshall

BigDave




msg:3363620
 5:08 pm on Jun 10, 2007 (gmt 0)

Question one: In the United States, it is absolutely legal if it is an accurate two dimensional representation of a two dimensional work that is out of copyright. See Bridgeman Art Library v. Corel Corp for this exact case, and Feist Publications v. Rural Telephone Service to see where the highest court in the land lthrew out the sweat of the brow argument.

Question two: Yes, it is ethical. Public domain is the default state. Copyright is the exception to the Public Domain, not the other way around. If the scanner does not add any originality, they are not entitled to claim copyright over someone else's work. They are trying to take away something that you have a full right to use.

Question three: You have a moral responsibility to credit the original artist if you know who it is. You do not have to feel any responsibility to the scanner. That said, crediting someone for their work is good karma, so I would do it as long as they played nice. If they send me nastygrams, claiming control of a public domain work, they lose any credit.

Of course, you shouldn't take my word for it, read up on Bridgeman v. Corel. Then send the decision to the person threatening you.

jtara




msg:3363645
 6:02 pm on Jun 10, 2007 (gmt 0)

That ruling appears to leave room for copyrighting a restoration. I'm not sure that a restoration would be a "slavish copy". Several times, the term "accurate reproduction of the original" is used.

If tears, fading, etc. are corrected, then, perhaps then the reproduction may qualify for copyright.

The case of making prints from negatives is interesting. What are you reproducing? The negative? Are you matching a representative print? ("The one displayed in x museum.") Or none of the above?

For those not familiar with printmaking - there are a wide range of prints which might look radically different that might be produced from a given negative, depending on exposure, processing, and manipulation.

And there is no one "right" print for a given negative. No photographic technology exists today (OK, except perhaps holography?) that is capable of accurately reproducing a scene. There are technological limitations to resolution, tone, and color. Photographers have to choose, for example, the tonal range that they will use, and have the ability to shift (non-linearly, at that) the limited tonal range of photographic materials in order to reproduce a scene either as accurately as *possible* or in accordance with their artistic vision.

And note that there is a similar process in printmaking as in the original photography - there are two points in the production of a photo where quite a bit of creative process comes into play, and the layman typically acknowledges only that which occurs at the point the shutter button is pressed. Yet, in reality, perhaps 50% or more of it is in printmaking.

So, where does that leave somebody with a collection of public-domain negatives?

IF restorations can be copyrighted, that presents a problem in this particular case. Absent the original, it isn't always possible to tell if the reproduction is a faithful reproduction of the original or a restoration. Only the print or negative owner knows that - unless he has actually seen the original, the copyer of the copy doesn't know. If the one who makes the first copy claims copyright, one may have to take him at his word, unless you can observe the original - which is in his possession and presumably he has no obligation to show you!

One might argue that a restoration is a faithful copy of the original before it deteriorated. To that, I will quote my favorite saying of my grandmother (from some old radio show...):

"Vas you dere, Charlie?"

[edited by: jtara at 6:15 pm (utc) on June 10, 2007]

thecoalman




msg:3363651
 6:11 pm on Jun 10, 2007 (gmt 0)

From wiki regarding the case mentioned above:

The library emphasized the effort that went into the production of their slides, which may have hurt their case—the effort expended was to make sure the slides reproduced the originals as exactly as possible (something of value to art scholars and historians) and thus were purposely devoid of originality.

-----------------------

From the poster above:
If the scanner does not add any originality, they are not entitled to claim copyright over someone else's work.

I think that is the crux of the issue, at what point does it not become the original. For example I have a photo with a lot of scratches, faded on one side and has corner torn off it. A better scanner itself can fix some of these problems, the person that has scanned the image can perform other operations such as reapplying the missing area (assuming it's not a huge portion of the image). IMO this is no longer the original, do you know of any case law in regards to that?

BigDave




msg:3363698
 7:41 pm on Jun 10, 2007 (gmt 0)

While you might be able to get a copyright on restorations or the printing process from the negatives, it would be a very weak copyright that applies ONLY to whatever changes you made. You cannot claim any copyright over the original, or even your scan or print of the original. You only get copyright over what you have changed that required creativity.

That weak copyright would easily be "transformed" by other minor operations. Remember the Supreme court ruling, it isn't your effort or skill that gets the copyright, it is your original creativity. I'm not so sure that repairing scratches in an attempt to get it to look like the photograph was before would qualify. Would repairing the same scratches on a print currently under copyright give you a compilation copyright? I wouldn't bet on it.

Even if you do believe that you have done enough creative work on your scan to claim a copyright, would you be willing to bet on it in court if you knew how much you could lose? If the person fights back and you lose, you can be liable for some mighty big legal fees. And if you file a DMCA takedown on material where you don't own the copyright, lookout. Just ask Diebold what happens.

londrum




msg:3363763
 9:05 pm on Jun 10, 2007 (gmt 0)

if he's claiming copyright simply for the act of scanning it, then just tell him you've scanned it as well. scanned it out of a book. or scanned it off a printed webpage.
how is he going to be able to argue against that, because that is exactly the same as what he did.

jtara




msg:3363781
 9:20 pm on Jun 10, 2007 (gmt 0)

if he's claiming copyright simply for the act of scanning it, then just tell him you've scanned it as well. scanned it out of a book. or scanned it off a printed webpage.

1. The poster ADMITS that he took the images from the website of the person claiming copyright, and that he DID NOT scan them himself.

how is he going to be able to argue against that

2. The poster ADMITS that there are identical identifying marks (flaws, etc.) in both the images he took from the website claiming copyright, and from other websites, which he ADMITS probably got them from the website claiming copyright.

I think at this point it's best to give the advice often given by one of the moderators over on the Domain Names forum: some things are best not discussed in such concrete detail here. Posts = evidence.

I agree that the use of the term "stealing" in the post's title (quotation marks or not!) suggests that the poster knew the answer (at least to the "ethical" question) from the start...

----
Why not just concentrate on gaining access to source material, and not have this ambiguous legal issue hanging over your site? No, you may not get access to the same material, but perhaps some that is equally unique and valuable.

If my intuition is right, the poster does have a passion for the subject material. If he can respect the other site's equal passion, perhaps the two add up to more than the sum. Otherwise, what is he adding?

thecoalman




msg:3363818
 9:54 pm on Jun 10, 2007 (gmt 0)

Remember the Supreme court ruling, it isn't your effort or skill that gets the copyright, it is your original creativity. I'm not so sure that repairing scratches in an attempt to get it to look like the photograph was before would qualify.

Now that I think about it you are probably right, even more so you would be trying to recreate the original which would go back to the library case posted before. I wonder if recreation of missing material falls into that category.

if he's claiming copyright simply for the act of scanning it, then just tell him you've scanned it as well. scanned it out of a book. or scanned it off a printed webpage.

I believe what the OP is talking about is original material not avaialble anywhere else. I know in my case the photographs I have possession of to the best of my knowledge don't exist anywhere else.

Not being able to hold copyright over them may actually be hindrance to images like these being released. If you have an original image the only way you would be able to guarantee the value of the image is to not make any copies available to the public.

ccDan




msg:3367143
 6:30 am on Jun 14, 2007 (gmt 0)

Question two: Yes, it is ethical. Public domain is the default state. Copyright is the exception to the Public Domain, not the other way around. If the scanner does not add any originality, they are not entitled to claim copyright over someone else's work. They are trying to take away something that you have a full right to use.

But, isn't what constitutes "originality" somewhat subjective?

I use public domain images on my web site. In most cases, I have two versions available. The first is a restored image. In other words, I scan it in and I try to get it to look like the original, or what the original would have looked like if it had not been torn, faded, etc. I don't claim a copyright on that.

The second is an altered image. I may do special effects, change colors or colorize, and generally adjust the image to achieve a specific look. That, I stick a copyright on and notate that that particular image is an altered image.

Typically, too, the restored image is a higher resolution. So, I'm not preventing anyone from making use of public domain materials, though it would be nice if they credit me as the source for the image.

With the altered images, I am not trying to create an accurate representation of the original but rather a certain look to go along with my website design. With some altered images, there is no doubt that the changes constitute originality. With others, it might be more subjective. I think that I am adding originality to the work, as I am not simply doing repair or restoration, but rather trying to get the image to look a certain way. Restoration may be "sweat of the brow" but wouldn't trying to achieve a certain look be a creative process?

BigDave




msg:3367180
 8:08 am on Jun 14, 2007 (gmt 0)

ccDan, what you are suggesting would be copyrightable. But it would not have the same strength as a copyright on a completely original work.

Let's say that you decided to tint the lips red and the eyes blue in an old black and white picture. You can copyright that work, but it is only the lip and eye tint that you have a copyright over. You would have trouble claiming infringement if someone takes your copyrighted modified picture and "transforms" it by tinting the lips orange and the eyes red. Your copyright is only in the changes you made.

Bolotomus




msg:3368113
 1:42 am on Jun 15, 2007 (gmt 0)

if he's claiming copyright simply for the act of scanning it, then just tell him you've scanned it as well. scanned it out of a book. or scanned it off a printed webpage.
how is he going to be able to argue against that, because that is exactly the same as what he did. (londrum)

That thought crossed my mind, but I'm not out to cheat anybody. I want the public to enjoy the finest collection of these documents as possible but at the same time I do not want to infringe upon anybody's rights. I just want to do the right thing here. If the law allows me to use somebody else's scan, well then that's what I'll do. If it doesn't, then I won't.

Why not just concentrate on gaining access to source material, and not have this ambiguous legal issue hanging over your site? No, you may not get access to the same material, but perhaps some that is equally unique and valuable.

If my intuition is right, the poster does have a passion for the subject material. If he can respect the other site's equal passion, perhaps the two add up to more than the sum. Otherwise, what is he adding? (jtara)


I do have a passion for the subject material and maybe I'm biased, but I believe that my site contributes more to this field than any other. Alexa ranks us as #1 in the category (for whatever that's worth). I have located documents from many difficult to get sources and reproduced them for the world's benefit.

So yes, we DO concentrate on gaining access to source material, and spend considerable money to accomplish that goal. But that's not my question--I want to find out if I can go one step further than this.

When people email me asking if they can use such-and-such a photograph, I send them a stock letter that says "Please use our resources. If you link back to our site, we will appreciate it." We don't even demand a link back. I am unclear if I have any right to even refuse such a request, but even if it is my right to refuse, I still wouldn't. I do not feel any right of ownership over public domain materials.

* * * * * *

Here's a premise which I considered, which sort of highlights the weird nature of this puzzle.

First of all, understand that very few of us ever have the luxury of copying original materials. Photographs from this period are usually destroyed, and the chemicals used in photos of the 19th century typically decompose after 40+ years. Usually we are copying magazines or newspapers, which are copies of the original photograph to begin with. The original photograph is lost to history.

Now, let's say Webmaster X makes a scan of a photo reproduced in an old magazine, and he puts this photograph on his website. That graphic is a copy of a copy of a photograph.

Now suppose Webmaster Y (me) prints out his webmaster's X web page on a sheet of paper. And then he sticks that sheet of paper into his own scanner, to make a copy of a copy of a copy. Now I have a new graphic of this photograph (albeit with slightly less integrity than the previous version). Alternately, I could take my digital camera and take a snapshot of my monitor, then process that image. True, the quality will degrade during this operation, but this is just a hypothetical argument anyhow.

The question is this -- What's the difference between what I just did and what Webmaster X did? In both cases we used technology to duplicate public domain works. In his case, he made a copy of a copy; in my case, a copy of a copy of copy.

I cannot imagine the legal argument which would prevent me from doing that. It seems to me that I did the exact same thing he did--except that he used the copy found in the magazine whereas I used the copy found on his website.

Perhaps this premise could be summed up like this: If you can lay your eyes on an image which is public domain, you have every right to use technology to make a copy of it, e.g. by snapping a photo with your digital camera. Once this is accomplished then you are free to use that copy for whatever purposes you like.

DamonHD




msg:3368309
 7:11 am on Jun 15, 2007 (gmt 0)

I'm in a very similar position, and have a very similar philosophy, to you in many ways.

I'm sure that your last para is pretty rock-solid true: if it's PD and you can lay your eyes on it for a moment, then you can redistribute copies of it freely.

(But it really had better be PD in a lawyer's definition of course. And IANAL.)

Now, just because someone else got a glance before you and then hid/destroyed/lost/whatever the original; should that give them exclusivity? No, I think not.

Equally, if they put real work/toil in to making the copies then you might make an offer to share those costs or exchange access to some similar materials.

My *guess* is that, were they to unreasonably refuse, and there was no other issue such as privacy or additional creativity involved, then you might be able to just go ahead anyway and use their scans, and let them see you in court, where they should loose. Hoarding PD works is anti-social and a loss to the world, and a right that the hoarder manifestly does not have in law so far as I can see. (Privacy might be an issue for old family photos, etc.)

But, really, IANAL.

Please do drop an email to Lessig and peers and see what they say, since this is interesting.

Rgds

Damon

vincevincevince




msg:3368321
 7:29 am on Jun 15, 2007 (gmt 0)

Ethically, I think that someone who takes things from the public domain, does very little to them, and then claims copyright of them hasn't got an ethical leg to stand on.

If you want to acknowledge someone, I suggest acknowledging only those who have actually done something significant. That means the original photographer, and the engineers behind developing the scanner which enabled your complainant to press 'scan' and get a beautiful digital image.

ccDan




msg:3368620
 2:10 pm on Jun 15, 2007 (gmt 0)

ccDan, what you are suggesting would be copyrightable. But it would not have the same strength as a copyright on a completely original work.

Let's say that you decided to tint the lips red and the eyes blue in an old black and white picture. You can copyright that work, but it is only the lip and eye tint that you have a copyright over. You would have trouble claiming infringement if someone takes your copyrighted modified picture and "transforms" it by tinting the lips orange and the eyes red. Your copyright is only in the changes you made.

True, but my main concern is that they don't exactly duplicate my work. Plus, if they were to do something as you've described, they would be better off working from the restored image (upon which there is no copyright claim or notice) rather than my altered image.

So, if the copyright notice serves to deter people from grabbing my altered image and sticking it as-is on their website, then it's done its job. How far I would go in trying to defend that copyright claim would depend upon a number of factors.

ccDan




msg:3368633
 2:33 pm on Jun 15, 2007 (gmt 0)

Ethically, I think that someone who takes things from the public domain, does very little to them, and then claims copyright of them hasn't got an ethical leg to stand on.

If you want to acknowledge someone, I suggest acknowledging only those who have actually done something significant. That means the original photographer, and the engineers behind developing the scanner which enabled your complainant to press 'scan' and get a beautiful digital image.

It was mentioned earlier in this thread that a copyright claim on a public domain image is based on originality and not sweat equity in the work.

So, in the case of someone who scans a public domain image and places it on their website, they may not have a legal leg to stand on, but I would argue that they may have an ethical one.

First of all, the only reason one has access to a particular public domain image is because someone took the time to scan it in and make it available. Is that not significant, especially considering that old books and magazines are frequently tossed without a care for the value of their contents? While that someone may not have a legitimate copyright claim in the work, certainly there is some ethical obligation to credit that someone as the source for your copy of the work, more so than the scanner engineers. The scanner engineers made a tool; the person operating the scanner decided how to put it to use.

Second, how does one know how much work someone put into the scan? If you don't have access to the original copy of the public domain image, how do you know how much work did or didn't go into it? Maybe the person operating the scan pressed "scan" and left it at that. Maybe they did some Photoshop work to restore it. In the former case, refer to point #1.

In the case of the latter, that being that some amount of sweat equity went into restoring the public domain image, while that may not give the person a legitimate copyright claim to the work, certainly there is an ethical obligation to credit the person who did the work. Restoration is not always an easy task. Photoshop (and other software) are great tools, but there is no "restore" button that will automatically take a public domain work and restore it to its original condition. Maybe when we have computers like on Star Trek that can be done, but today it takes the skill and hard work of a human being.

While that may not constitute a basis for a copyright claim, certainly it constitutes a basis for an ethical obligation to the person who did that work, no?

[edited by: ccDan at 2:36 pm (utc) on June 15, 2007]

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