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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.
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
I just read-up on Bridgeman v Corel, every single word. This is all I've been looking for all this time. It doesn't leave much wiggle-room for those who assert ownership on public domain materials due to the effort done scanning. The question may still be grey with my example of photographing three-dimension works, like the Michaelangelo statue, but when it comes to two-dimensional reproductions performed at relative faithfulness to the original, well, it seems like it's an open-and-shut case.
That utterly solves my question #1 in my opinion. The answer is yes it is legal to appropriate the scan that somebody else has on their website, and I need not credit them whatsoever.
The moral issues, well that's just personal decisions anyow, I'll do what my heart tells me is right.
The part of the decision that I liked the best was this part:
"Absent a genuine difference between the underlying work of
art and the copy of it for which protection is sought, the
public interest in promoting progress in the arts --
indeed, the constitutional demand [citation omitted] --
could hardly be served. To extend copyrightability to
minuscule variations would simply put a weapon for
harassment in the hands of mischievous copiers intent on
appropriating and monopolizing public domain work."
And that's exactly what I'm fighting against. Small minded people who want to maintain a monopoly on public domain works. Bridgeman library learned that when they made their slides, they made the slides for the benefit of the world. I know a certain webmaster who soon will learn a similar lesson.
Thank you again, I can't thank you enough.
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.
What of those publishers--one in particular that I'm sure most people know of--that publish books and CDs with clip art, largely (if not entirely) derived from public domain sources, that try to limit how you may use those images, such as 10 per publication and stuff like that? Have their been any challenges to them in court, or similar cases that would affect them?
The person who created the original scan should not have a copyright interest in the original "work." But he does have an inherent copyright in the publishing of his Web site. Does he not?
Therefore, the OP is really using a copy, without permission, of another party's publication. Sure does open a can of worms, eh?
Gray-area copyright issues aside, I would think that, morally and ethically, a credit to that person (the one who published the first scan of an original work not obtainable by the OP) should be given.
But he does have an inherent copyright in the publishing of his Web site. Does he not?
You are confusing copyright in the scan of the public domain image with the copyright in the website.
In a copyright case, you take what is copied, subtract what is not subject to copyright protection, and what is left is where the conflict is.
So, you scan a public domain image. You put it on your website and have a copyright on the website. Someone copies the image from your copyrighted website. There must be infringement, right?
Well, they didn't copy your entire website, they copied a piece of it. A piece that is in the public domain. Subtract everything that wasn't copied, and everything that is not copyrightable because it was in the public domain, and you have nothing.
It's the same thing with an anthology of public domain poems. You can put one together and claim a collective copyright. But if someone copies The Cremation of Sam McGee out of it, you have no case, because they did not copy what your copyright covers.
I would think that, morally and ethically, a credit to that person (the one who published the first scan of an original work not obtainable by the OP) should be given.
I would disagree. There is no moral or ethical requirement to credit Bob's Anthology when I put a Robert Service poem on my website. The moral requirement is to credit Robert Service.
But there might be historical or goodwill reasons to credit the person that found the work and made it available. But ONLY if the person is being ethical by NOT claiming copyright over a work in which they have no rights.
As I stated earlier, I may have the law misunderstood. I think it is going to fall into the category of, "altering the media source". Based on what you explained, I think he would have to copyright the images individually, or copyright a "collection" of images, since they went from a book, to digital media.
Ethically, if it were a book that has a circulation of plublication such as national geographic WITHOUT a copyright, I would have to say use the images. If it is an individual book such as a photo album, give the images back to him.
From my understanding of the copyright law, which may not be correct, if hte book that has the original photographs in it, has a copyright, the author of the book holds hte copyright, (not the owner of hte book). In simple english, if you pick up a national geographic, that has a picture from 1865 in it, and the national geographic was copyrighted, then national geographic would have say as to whether you could use the image.
Assuming the photo was first published in the U.S., the copyright of a photograph from 1865 would be expired and in the public domain.
If National Geographic would publish that photograph in a current, i.e., 2007, issue, that does not change the copyright status of the photograph. The magazine's contents would be protected by copyright, and they may even claim a copyright on a compilation of public domain images used in that issue. But the photograph is still in the public domain. If they have not modified the photograph to a creative extent which would qualify for a new copyright, then that photograph is still in the public domain. Even if they restored the photograph, that may not qualify for copyright protection (as discussed earlier in the thread).
Copyright grants the holder of the copyright an exclusive right--a monopoly if you will--over the creative work. When the copyright is expired and in the public domain, everyone can freely use that creative work. Just because you use that creative work in a copyrighted magazine or web site does not grant you an exclusive right to use a public domain work.
I know it may be a difficult pill to swallow that you've taken the time to collect/scan/restore a public domain work and you don't have exclusive use over your result. It's not fair. But, such is life. If someone doesn't like that someone else can take public domain materials and use them in their own publication or web site, then someone should probably focus on creating original works--or modifying public domain works to the extent that someone's creative work is copyrightable--and not bemoan the fact that possession of a public domain work does not give you exclusive control over its contents, only its physical form.