Sunday, May 02, 2010

Copyright Kerfuffle

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Ask a question, poke a wasp's nest. And maybe you'll get an answer.
provides commentary and discussions on high tech news including copyright issues that arise from the use of high tech. A reader can submit a question and Techdirt experts will provide an answer.

The Clinton County Historical Association has been making digital copies of glass negs dating from 1897. Most of the negs are portraits of local people taken at photography studios. The portraits are arranged in alphabetical order by last name. When you go the CCHA glass negative galleries and click on a particular galley, you encounter this statement before entering:

"All photographs in this gallery are the property of the Clinton County Historical Association and are protected by the Copyright Law of the United States (Title 17, United States Code) and by the Berne Convention. Reproduction, storage or transmittal by any means, of any image on this web site, whole or in part, is prohibited without express prior written permission. Prints purchased from this gallery may not be reproduced or scanned for any reason and may only be used for personal display. If you wish to publish or reproduce the materials in any physical or digital form or use them for any commercial purpose, including display or Web page use, you must obtain prior written permission from the Clinton County Historical Association.

Do you agree with these terms? YES NO"

To see the images you have to click on YES.

I'm not an IP attorney but it seemed to me that CCHA couldn't put a copyright claim on images so old. The images should be in the public domain. I had no trouble with CCHA charging for prints made from the glass negs. Obviously the digital scanning was labor intensive and so I had no qualms about CCHA being compensated for the work, raising money as a nonprofit organization. I just questioned the way the organization was trying to prevent unauthorized copying by putting up a copyright click agreement.

So I submitted some details and links to Techdirt. One of the experts, Dennis Yang, said that CCHA couldn't claim copyright. He explained:

"As ruled in Bridgeman Art Library v. Corel Corp. 36 F. Supp. 2d 191 (S.D.N.Y. 1999), exact photographic copies of works in the public domain cannot be copyrighted. So, the question then extends to whether or not those photos are in the public domain yet. The copyright is owned by the photographer and lasts for life plus 70 years. Since the photos in question were taken from 1901-1905, it is likely that many have already passed into the public domain."

Yang also noted that even if CCHA had the copyright to the images, it was limiting itself by "hiding" them from search engines.

But in the comments that followed a few readers argued whether or not Yang's answer was correct. So while I appreciate Yang taking the time to reply, I still don't know if the issue is that clear cut.

I am familiar with the concept of fair use. Notice that at the top of this post is an image I took from CCHA of a digitalized glass neg, complete with an ugly watermark. I didn't ask for permission in writing to use it to illustrate this article, despite the click-through agreement. I am only using the image to show what kind of images are archived at the CCHA website. My use is journalistic, noncommercial.

Maybe I'll hear a knock on my door from the Copyright Police.


tourpro said...

Totally agree, they are losing out big-time by not "sharing". Apparently, the person who is behind that policy is still in the 19th Century.

Walrus said...

I'm glad you are bringing attention to this issue.

The article at TechDirt is very disappointing and factually incorrect.

You can't claim to own the copyright of a photo taken before 1923. That is the magic year: they are all in public domain now. Once in the public domain, you can't put a stamp on it and claim it as yours. What do they think "domain of the public" means! :D

One of the commentors of that article erroneously stated that if a photograph wasn't published before 1923, you can "dig it out and publish it" now and claim copyright for 75 years after your own death. Not true! If it wasn't published with a registered copyright, (registration was required back then,) it was *always* in the public domain.

Besides, even if that was true, if it went to court, the Historical Society would have to prove, for each and every photograph, that it *wasn't* published anywhere, anytime, in the distant past.The burden would be on them, because they made the claim. Thank goodness the law isn't written like that anyway! Can you just imagine the chaos? Many historic archives have redundant copies of the same photos.

Imagine thousands of institutions all in a race to register the "new" copyrighted photos! Picture the eruption of a giant 500-way legal food-fight between museums, historical societies, descendants of the photographers, libraries and publishing houses. All of them would sue each other.
Copyright laws exist to prevent chaos, not cause it.

If the society is that concerned about the money that it takes to maintain, restore and showcase the photos, they should make an online album supported by google ads and make some! Free online viewing access to the public would fufil their mission, and ad revenue would fill their purse.