Forum Moderators: not2easy
"This file has been released into the public domain by the copyright holder, its copyright has expired, or it is ineligible for copyright. This applies worldwide."
And: "Category: Public domain".
In my case the copyright of the artwork itself has indeed expired, but I own the only copy of the unique original, and I have done the scanning work. My web page carries the customary copyright notice. Wikimedia does mention the source of their image.
What does US law say about an owner's rights regarding unauthorized republication of images of his objects? It is not possible for the public to view and photograph this very item. Picture libraries and museums usually charge a fee for the use of their photo, even if it is not copyrighted as such (eg. too old), and that fee does not include republication by others. What about any rights of the person who did the scanning work? Does it matter if the object has to be photographed first or if it can be scanned directly?
I have not contacted Wikimedia because I suspect those folks do not care much about this kind of concerns and I do not want to unnecessarily anger the anti-copyright community. In fact there is no link for reporting abuse. If it actually is OK for me to copy (and thus dilute), like Wikimedia did, rare images full size from other persons' websites to my own site (and regardless of their new contexts), as long as I conclude there is no copyright on the original artists' work, it would be interesting information.
I would argue that since Wikipedia's disclaimer reads "This file..." you can make the argument that you created and own that file and did not release it to the public domain.
You can *claim* copyright to a scan of a public domain text or image, but, as far as I know, such a claim has not yet been challenged in court, so whether it would hold up or not is another issue.
I would contact Wikipedia and give a try at getting them to take it down.
Leave the image as-is on your site for now (so Wikipedia can verify it if needed), but later replace the image with a copy of the image that has your web site or name watermarked in it to discourage future theft.
Additional possibility:
Person A to asks person B to upload something that perhaps is copyrighted to Wikimedia. Then A copies that image to his own project, and claims "good faith" -- it was public domain.
If I copy an art work and scan the image I can own the copyright to the adjustments which are made on the underlying image as a creative addition to a work, if indeed the copyright on the original image has expired.
Willjan
If you do not add new artistic creativity and originality, then your scan does not have copyright protection.
No copyright.
put in the reason box: possible copyright infringement
nobody will challenge you on that
Commercial picture libraries and museums may own (even previously unpublished) unique historical photograps, copyrighted or not. They sell copies of them for a fee, and will not be happy to find them republished gratis all over the web. Can they claim any rights in order to protect their future revenues?
It looks like people can copy images from web sites for republication without getting into troubles -- unless the holder of original copyright if any reacts -- and Wikimedia seems to faciliate republication by automatically labelling uploaded full size images Public Domain. I still don't know if I have any owner's rights whatsoever to my previously so unique image, so how can the person in Asia who uploaded it to Wikimedia be so sure it's Public Domain?
As a matter of fact, the museums tried to talk Bridgeman into dropping the lawsuit in the hopes of leaving this a gray area of law, rather than have a precident against them.
You will also learn how they intend to continue to make money through licensing of the high resolution images. They still control who can take pictures of work.
The ruling also only applies to two dimensional works. Photographs of three dimensional works are more transformational.
You may feel like someone it taking something that is your's, but in truth, you are trying to take something that does not belong to you. You own the physical work, not the copyright.
and Wikimedia seems to faciliate republication by automatically labelling uploaded full size images Public Domain.
Umm.. really? Seems to me that the wikipedia image upload system specifically tells the user to choose what licensing to label the image, and provides many options. If an image is mislabeled by someone else, there are clear methods on how to fix or delete the image.
Or.. one could get all huffed and puffed up, get a lawyer, send wikipedia a nasty law-o-gram, and give them Lots More Free Press!
Deep sigh.
However another precedent was set in the US within the past year.
I'm sorry to say I can't recall the case, even though my lawyer represented the plantiff. But, a publisher put together a series of books of patterns using as their source photographs of old quilt patterns more recently reproduced in a copyrighted book. In fact, they actually took pages from the copyrighted book to help create their version.
In this case, the defense used Bridgeman v. Corel as a defense, claiming that they could use the copy photographs since it was not an original work, but a "slavish copy", as describes in Bridgeman v. Corel. But, they lost the case, so there are reasonable exceptions and grey areas.
I'd suggest seeing a good IP lawyer if you want to really go after them. Wiki also has enough bad press about many of their entries and a simple letter to them may bring results without involving a lawyer. Usually that is the best first step in any copyright issue anyway, since it establishes "good faith" if you have to go further.
This kind of situations may explain why there are no doubt as many lawyers in the US as artists :-)
Willjan
Yes, the decision was damaging, but they knew it would be. That is why they never sued anyone for violating any copyright that they claimed. That is why they encouraged Bridgeman to drop the lawsuit. That is why they were glad that Bridgeman ran out of money before the appeal was heard, which would have made the inevitable ruling more binding.
The fact is that the decision was only damaging and harmful to the museum's income stream, but only in the same way that having the police confiscate stolen property and returning it to the rightful owner is damaging to a thief. Once a work enters the public domain, trying to assert copyright is taking what belongs to the public.
While Bridgeman, as a District Court ruling is not binding, don't you find it interesting that the group with the most to lose does not want to try and overturn it? The reason is simply that they are certain that it will be upheld, and every level higher in the chain will make it binding on more district courts.
You might also note that other court cases from around the country are applying Bridgeman to their rulings. This does over time make it more binding.
That is the same way that Fair Use analysis entered the legal system from the ruling in Marsh v. Folsom. It was only binding in Circuit D since it never made it up to the Supremes. But as it was cited in ruling after ruling, it became binding law.
It was even cited in court cases in other countries, and the general idea made it into the statutes of various countries. In fact, the United States was one of the last countries to make Fair Use statutory because the caselaw was so well established and compelling.
While the Bridgeman opinion is not considered binding in ohter countries, it is almost certain that you would have to fight your battle in courts in the United States or in the country of the person that posted the image. And even if you win in the country where that person lives, the only place you would have any hope of keeping the picture off wikimedia's servers would be in a US case. Copyright is national law, and needs to be files where the infringement occurs.
Willjan, as with Fair Use, just because a defense fails in the use of Bridgeman, does not necessarily damage the power of the precident. If the judge even considered the "slavish copying" aspect it would have strengthened Bridgeman instead of weakening it.
I remember hearing something about that case, but like you I am unable to find it.
In the case of geekay, we are talking about a scan, not even a photograph. There is less originality and creativity than taking photographs of a painting in a museum. It is about as "slavish" as you can get.
It could amuse American webmasters that you may well be free to republish, in USA that is, said type of images even in cases where they were published abroad by someone. But if a foreigner republishes a comparable image produced in USA he could, so far, successfully be sued in his home country by the American.
N.B. that Bridgeman was about the claimed copyright to images of artwork that itself is public domain. The museums and similar want to cover at least their costs of photographing plus earn a publication rights fee by licensing. I guess it has become more difficult and expensive to order such photos now. I once had an argument with our Board of Antiquities regarding that fee part.
BigDave: "taking what belongs to the public". Fortunately nobody is obliged (yet) to display public domain artworks etc. in his possession free of charge to all interested...
Regarding Wikimedia Commons, they now have a total of 300 000 free files of different kinds. Well-intentioned indeed, but I wonder how many of those are files from other people's sites erroneously uploaded by eager public domain enthusiasts with little knowledge of copyright law. As we can see eg. in this thread, it's really a complicated field. The repository may now be sort of fait accompli.
It could amuse American webmasters that you may well be free to republish, in USA that is, said type of images even in cases where they were first published abroad. But if a foreigner republishes a comparable image produced in USA he could, so far, successfully be sued in his home country by the American.
If the foreigner republishes it in his home country, you are correct. If he republishes it in the US or a third country, those are the most likely venues for the lawsuit.
It is genererally accepted that the correct venue for the lawsuit is the jurisdiction where the infringement takes place. Some countries might place additional restrictions on their citizens.
Fortunately nobody is obliged (yet) to display public domain artworks etc. in his possession free of charge to all interested...
That is true, and that is your right as the owner of the physical work, and that is what the museums are depending on.
What is interesting to consider, is that scanning that work and posting it to your website could very well be illegal if the work was not public domain. Ownership of a physical representation of the work is completely unrelated to the actual work.
Then you can turn it around, and you as the owner of the physical representation of the work have the right to deny access to the copyright holder if they want to make copies of it. You could have a showdown, denying each other the right to make copies till it enters public domain. At that point, the decision rest with the holder of the physical work.
scanning that work and posting it to your website could very well be illegalTrue, and worthy of being pointed out here.
An important side-consequence of Bridgeman is obviously also the following scenario:
I obtain the permission to publish a two-dimensional work that is truly copyright protected (eg. a contemporary photo), scan it and put the image on my web site. If a competitor then copies the image to his web site I can unfortunately do nothing about it even if I'm the one who suffers from it, because my scanning work is not protected in any way. Only the holder of the copyright of the original artwork can take action against him. At that time it could be hard for me to locate the holder.
Scanning does not usually involve any creative activity, so the result is a simple copy, not a "derivative work". This means that if the original is in the public domain, then the scan is so as well. This is also the case for any one-to-one photographic reproduction of two-dimensional artwork such as a painting or drawing (but not of a photograph showing the artwork with some context eg. an exhibition space).
I have not contacted Wikimedia because I suspect those folks do not care much about this kind of concerns
The Wikimedia folks care a lot about copyright issues. But this also means that they are very well informed about the legal situation, more so than most people complaining about their actions. In this specific case, they seem to be following the rules to the letter.
put in the reason box: possible copyright infringement
nobody will challenge you on that
They most definitively will challenge that, for the reasons specified above.
But I note that an American Association of Museums counsel calls the ruling "damaging", the opinion "harmful".
Fortunately those people are not making the laws...
An important side-consequence of Bridgeman is obviously also the following scenario:
Actually that one was well founded even without bridgeman. The courts always wanted to hear from the originating copyright holder in a case like that, as that would be the controlling copyright. They would need to know that you were indeed granted the right to use the work in the first place, and that they did not grant the rights to that original work to the other party in the lawsuit. Any portion of the copyright in your control would be in danger of being considered de minimis.
The problem of needing the original copyright holder's permission in order to pursue infringers is the same sort of problem that web forum operators have. The forum operator only has a compilation copyright, while it is the individual posters that hold the copyright on their own posts. The forum owner cannot successfully sue over someone grabbing some individual posts out of their forum, as the compilation copyright does not cover that.
this also means that they are very well informed about the legal situationThat's excellent. But haven't we noticed that US copyright law is one of the most difficult areas even for the top lawyers? Still, Wikimedia is not simply testing the limits of the law by going even as far as to the darkest end of the grey area.
They most definitively will challenge thatCouldn't Wikimedia consider to be nice and kindly take down content as easily as it puts it up? Maybe even inform the webmaster that they have put up something from his site? I wonder why someone in Asia thinks that my image should be easily available to the whole world and in any context -- it must be really good.
Fortunately those people are not making the laws...Ie. it's the Public Domain community that should make US copyright law, yes? It would be a short law, I guess. Would it be very unfair if eg. museums, picture libraries, art collectors, and perhaps even webmasters were allowed to say something too?
Ie. it's the Public Domain community that should make US copyright law, yes?
Actually, the public domain community does control the copyright in the United States, and it is a good thing.
From Article I Section 8 of the United States Constitution:
"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;"
The reason that copyrights and patents exist is to promote the public domain, not to enrich the writer or inventor.
Which is all a moot point in your case since you are not the creator of the work in question, nor did you mention ever holding the copyright on that work. By trying to assert control, you are trying to gain a copyright to which you do not have, and never have had, a claim.
The only way that you could keep control of that image is to treat is as Trade Secret, which you did not do. You made that picture available to people that did not sign an NDA. No NDA, no copyright, and you publish on the net.
It is not Wiki that needs to respect your wishes, it is you that needs to respect the law and the public's intellectual property rights.
There's no grey area here. The are fully and explicitly entitled to do what they did.
Couldn't Wikimedia consider to be nice and kindly take down content as easily as it puts it up?
In those cases where uploaded material is even only suspected to infringe on someones actual rights, Wikimedia is very quick to take it down. They only leave stuff up where they know they aren't breaking any laws.
But in the situation as you describe it, you are trying to keep something for yourself (the reproduction rights of the artwork where you happen to own the original piece) that actually belongs to everybody. They are simply trying to make public property publicly available.
In your shoes, I'd be proud to own the physical original work, which is a very special item, and can't be taken away from you. But you'll have to share the reproductions with the rest of the world. You're the one who needs to be "nice" here, not them.
If you would kindly avoid replying to my possible future posts it would be appreciated.
LOL. This is a public forum. If you don't want responses from any of the members of it, you don't have to post here!
BigDave, you and I are on different sides of the barrier. I do admit having a web publisher's interests. You seem to be foremost an advocate of the interests of web users.
No, you have that quite wrong. I AM a web publisher. I am pro copyright protection.
What I am against is copyright abuses. Copyright exists to encourage new publications that will eventually go into the public domain. It is there to encourage and fairly enrich those that create original works for giving their work to the public.
I am in favor of shortening copyright terms, but that is beside the point in this discussion. The point here is that you never even had a copyright in the first place. You are trying to claim something that you don't have any right to claim, and never did.
And consider this, if it wasn't for copyright law, the only way to ever keep anyone from copying your work would be to keep it a secret. Once you put that work out there, it would be copied. That is how it worked till just a few hundred years ago. Someone invented the wheel, and if you saw it, you copied it, and it wan't considered wrong.
I'm sorry if that is not what you wanted to hear, but that is the way that it works.
That is, of course, perfectly legitimate and I do respect your genuine conviction, but I should not have solicited your advice in this forum.
You might also want to try respecting my opinion and knowledge. I gave you your answer, but you did not like the answer.
So, if you wanted an actual answer to your question, then I supose you should not have asked it in a forum where you would get such an answer.
If you would kindly avoid replying to my possible future posts it would be appreciated.
Isn't this the same problem you had with your scan? You put it out on the internet, then you try and control what happens to it? I would suggest treating your posts as trade secret and keeping them private.
No, I will not refrain from responding to your posts. Not to torment you, but because others will also be reading your posts, and if there is some sort of misinformation in them, or something I disagree with, I will post. That's life on the internet.
No, I will not refrain from responding to your posts. Not to torment you, but because others will also be reading your posts, and if there is some sort of misinformation in them, or something I disagree with, I will post. That's life on the internet.
Dave's replies contributed greatly to the knowledge base here and gave legs to your post, fortunately for the rest of us who do respect Dave's knowledge and opinions. While you may not have appreciated his answers, I did.
And if you don't like the message, don't kill the messenger.
Willjan
