Licensing the Public Domain to the Public

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by · Posted in: musings · media · photography business

The French painter Claude-Joseph Vernet died on December 3, 1789 exactly one month and one day before the the second congress of the United States passed the first federal copyright act. The original act granted authors 14 years (extendable to 28) to exclusively benefit from their creative work. The act is explicit in its purpose as stated in the first line.

An Act for the encouragement of learning…

Congress has amended copyright laws several time since 1790 and it now affords owners of a copyright protection for their life plus 70 years or 120 years when the works are under corporate authorship. No amount of reckoning, however, can place the above painting anywhere but soundly within the public domain, that special place where the work is no longer laboring for the (long dead) author, but has become part of the general fabric of the culture, free for anyone to use however they see fit. Which is why it is alarming that the Corbis corporation is licensing reproductions of this work under a rights-manged scheme. There is nothing wrong with profiting from this work; profit is one of the many perks available to everyone of the public domain, but Corbis is going a step further and claiming ownership of the copyright, saying in essence that although they will take advantage of the public domain they would like to prevent others from acting similarly. The entire business model of licensing work depends on the ability to control reproduction of intellectual property and this is something that by definition cannot happen with public domain works. This is how the work is labeled at

42-18334121| Standard RM| © The Gallery Collection/Corbis

Really? © The Gallery Collection/Corbis?

Corbis is not alone in claiming ownership of public domain intellectual property. Many museums also try very hard to control and charge for the licensing of works in their collection and often go as far as claiming ownership of the copyright—even for works that are hundreds of years old. Consider the National Portrait Gallery's policy on reproducing works in their collection:

Without written confirmation of such separate permission in respect of the materials and works included on this website, all other acts are prohibited including but not limited to the following:

• reproduction of any kind in any medium.
• storage in any medium including extraction into any other database, computer programme or website.
• public performance, broadcast or display.
• rental, leasing or lending.
• extraction, manipulation or altering in any respect.

British copyright law, like US law, makes provisions for the expiration of copyright. (A useful chart is available here.) I chose the National Portrait Gallery because on their website they go to great lengths to explain some of the precepts of copyright while ignoring the entire idea that copyrights eventually expire, a condition with which a large amount of their collection is afflicted, such as this eighteenth century engraving (notice the copyright symbol attached to the image).

Prior to 1999, museums exploited the untested hypothesis that although the artworks themselves may have entered the public domain, new photographic reproductions of the art were themselves protected under copyright and since the museums could limit photography on their premises, they could effectively control commercial use of the public domain works in their collection. The only reproductions available were those photographs made by the museums to which the museums would then claim copyright. Controlling photography by museum patrons was central to this strategy and is still common practice: consider the Art Institute of Chicago's policy on photography:

Still photography of the permanent collection, taken in existing light, is permitted on condition that the photographs are for personal, non-commercial use.

and the brazenly explicit policy of the National Portrait Gallery:

We also exert strict controls on all photography in the Gallery, which is allowed only on the understanding that copyright rests with the us and that any further reproduction deriving from the resulting photographic materials is subject to our written permission.

The whole idea fell apart with the Bridgeman Art Library v. Corel Corporation case in which the Bridgeman Art Library asserted that their photographs of artwork were entitled to copyright protection on their own merits. They rightfully lost because the judge found that slavish copies of work were not creative works in their own right and hence did not earn protection under copyright—there was no originality displayed in these images. To allow protection would be like assigning the copyright to a xerox of a poem. But museums and now stock photo agencies continue to make the same assertions in spite of the Bridgeman case.

I am not without sympathy for the plight of museums; they do important work that is expensive, but they need to get out of the business of licensing the public domain back to the public. It distorts the intention of copyright and runs counter to the very ideas most museums try to engender. As curators they are keepers of a public trust which should be funded by the public for the public—that is the simplest answer if only we had the political will to make it happen. I have less sympathy for corporations like Corbis or Getty (see Getty Claiming Copyright to National Archives Images and Selling Them) who are simply attempting to seize the public domain for profit. There is nothing wrong with charging for the service, but this does not entitle them to claim a copyright to these works. We should defend the public domain as vociferously as corporations defend their legitimate intellectual property. Although it may not seem so from the perspective of a corporation, copyright law was intended to promote creativity and education, not to protect the corporate bottom line. The public domain is a vital part of this. Also, to falsely assert copyright intentionally is illegal:

(c) Fraudulent Copyright Notice. — Any person who, with fraudulent intent, places on any article a notice of copyright or words of the same purport that such person knows to be false, or who, with fraudulent intent, publicly distributes or imports for public distribution any article bearing such notice or words that such person knows to be false, shall be fined not more than $2,500.

Section 506 of the Copyright Act