Libraries and copyfraud

For the last week, I’ve been exchanging emails with curators at the Huntington Library about their use policies for digital images. For the Darwin Day 2009 Main Page effort on Wikipedia, I’ve been putting together a list of portraits of Darwin. Although a number of websites have significant collections of Darwin images, there isn’t any single comprehensive collection. One interesting shot I came across is an 1881 photograph, possibly the last one before Darwin’s death, that was allegedly “rediscovered” in the mid-1990s when a copy was donated to the Huntington. Press releases and exhibition descriptions invite people to contact the Huntington to request images, so I requested the Darwin photo. The response I got was typical of how libraries and archives deal with digital copies of rare public domain material.

The Huntington quoted distribution fees for the digital files (different sizes, different prices), and also asked for specific descriptions of how the image would be used, so that the library could give explicit permission for each use. Had I wanted to use it for more than just publicity (e.g., in a publication) more fees would apply. Apparently the curators were not used to the kind of response they got back from me: I politely but forcefully called them out for abusing the public domain and called their policy of attempting to exert copyright control over a public domain image “unconscionable”.

In the exchange that followed, I tried to explain why the library has neither the moral nor legal right to pretend authority over the image (although, I pointed out, charging fees for distribution is fine, even if their fees are pretty steep). A Curatorial Assistant, and then a Curator, tried to explain to me that the Huntington actually has generous lending policies (you don’t “lend” a PD digital image, I replied), that while the original is PD, using the digital file is “fair use” that library has the right to enforce (fair use, by definition, only applies to copyrighted works, I replied), that having the physical copy entails the right to grant, or not, permission to use reproductions (see Bridgeman v. Corel, I replied), that other libraries and museums do the same thing (that doesn’t make it right, I replied), that big corporations might use it without giving the library a cut if they didn’t claim rights (nevertheless, claiming such rights is called copyfraud and it’s a crime, I replied), and finally that I should contact the Yale libraries and museums and see if they do things any differently (a return to the earlier “everyone else does it” argument with a pinch of ad hominem for good measure, to which I see no point in replying).

Unfortunately, the Curator is right that copyfraud is standard operating procedure for libraries and archives. Still, I think it’s productive to point out the problem each time one encounters it; sooner or later, these institutions will start to get with the program.

As an aside, the copyright status of this image is rather convoluted. The original is from 1881. The photographer, Herbert Rose Barraud, died in 1896. The version shown here (originally; now lost) is a postcard from 1908 or soon after, making it unquestionably public domain. It comes from the delightful site Darwiniana, a catalog of the reproductions and reinterpretations of Darwin’s image that proliferated in the wake of his spreading fame. Apparently, when the image was “rediscovered” in a donation to the Huntington, they thought it had never been published and was one of but two copies; a short article about the photograph appeared in Scientific American in 1995. Had it actually never been published until then, it would arguably be under copyright until 2047 because of the awful Copyright Act of 1976. I say “arguably” because of the vague definition of “publish” and the rules for copyright transfer (“transfer of ownership of any material object that embodies a protected work does not of itself convey any rights in the copyright”) combined with the fact that another copy exists would seem to indicate that, at the very least, the Huntington has no place claming copyright. Paradoxically, publishing it for the first time in 1995 would have extended the copyright to 2047 but would have made the Huntington and/or Scientific American into violators of the copyright of whoever actually owned it (which would likely be indeterminable). But if it had remained unpublished, it would be public domain. I’m still unclear about whether it would have been public domain before 2002, when the perpetual copyright window of the 1976 law closed.

UPDATE – My thanks to the others who’ve linked to and discussed this post:

255 thoughts on “Libraries and copyfraud”

  1. Thanks for the tip. Unfortunately, copyright law in the UK is even worse than the US in some respects, especially for archival material. In the UK, one can claim copyright for a digital image, separate from that of the underlying work.

    This is what the Wellcome does, and it licenses its images with a Creative Commons noncommercial license. While that’s better than what many British archives and libraries do, it can’t be used on Wikipedia. Still, I see a few caricatures that I could track down free versions of.

  2. You say that the image from the Darwiniana site is “unquestionably public domain”. However, Darwiniana is a UK site and as you point out, “In the UK, one can claim copyright for a digital image, separate from that of the underlying work.” My question is (and I am interested in the answer because of projects I am involved with):- If an electronic image of an out of copyright photo is under copyright in UK law, would this need to be respected in the USA, or could it be ignored?

  3. Thank you for doing this. Someone needs to be having these conversations before the digital enclosure movement becomes completely entrenched.

  4. George, I meant that the photograph (and postcard) itself is unquestionably public domain because the postcard and other versions prove it was not unpublished, and therefore any faithful reproduction made in the US (e.g., the Huntington’s copy) is also PD. You’re right that the scan of the postcard, if done in the UK, might be copyrighted under British law (but still public domain in the US). However, the operator of that site, who apparently scanned most of the stuff himself, doesn’t appear to claiming copyright (and my use in the blog would be fair use anyhow).

    As I understand it, opinions differ on how much scan-based copyright can be ignored outside the UK. The version I think is most correct is that only the laws of the country where a website is hosted apply (and for other publications, I’m pretty sure that’s the case legally, even if publishers generally play it safe and respect any claim of rights for images, no matter how far-fetched). Wikimedia Commons uses a more conservative version, which is that things have to be free in both the U.S. and the country of origin.

  5. only the laws of the country where a website is hosted apply

    That depends on what the website does. If it can be argued that the service provided by the site is directed mainly to some other country (as is the case with most non-English language wikipedias), it might be possible to sue based on the law of that country. See for example this story.

  6. ..that I should contact the Yale libraries and museums..

    In fact, they do. Beinecke (like many large repositories and unlike Huntington) assert no copyright or licensing rights over their digitised material. Recently I was made aware of the famed Ripley (alchemy) Scroll which had been uploaded in sections by Beinecke and which was reported on their Early Modern blog.

    Although I already knew the conditions they operated under (having published a book featuring one of their images) I nevertheless contacted the Beinecke librarian out of courtesy to ask if it was alright for me to d/load all the Ripley image sections and then splice them together and post the final image to my blog and to flickr and, ultimately, to wikimedia.

    They were very very very happy for me to do this.

    I’d be interested in someone pointing me to the UK law that allows de novo copyright over digitised material.

    Thanks Sage.

  7. Peacay,

    Yes, I discovered Yale’s quite sensible page explaining the difference between owning a physical copy and owning copyright ( ) a few days after this post, and I’ve since replied again to the last email with the Huntington curator. Seems like a good place to point recidivist archivists and curators. I haven’t heard back yet.

    I took the stick approach, telling them off for unethical and probably illegal policies, but I have a friend who is going to try the carrot, contacting them independently to show them the benefits of letting PD material go free: Wikipedia frequently highlights images from the Library of Congress on its Main Page, because the LoC is one of the best places to get really high quality PD scans and we have a number of Wikipedians who do excellent restorations on these images. That can mean millions of views in a single day for something that hardly anyone was aware of before the library released it and a Wikipedian worked on it.

    My understanding of the UK situation is based mostly on the Wikipedia article “Sweat of the brow”. It’s hardly an authoritative treatment, but it mentions some court cases where you might find a better answer.

  8. Curious: Did they ask you to sign a formal license/contract that would limit your downstream use of the image file? Or did the conversation not get that far?


  9. Kristen, the conversation didn’t get that far. I objected to the first email I got from them saying I would have to give an account of exactly how it would be used so they could give permission. Since I wanted to put it on Wikipedia, I couldn’t limit how it might be used and didn’t want to assume responsibility in case they tried to litigate.

  10. Trevor, thanks. That’s an interesting document. It’s obviously written for archivists and curators, with the needs of professional scholars (of the kind who inhabit the MPI, no less) in mind.

    It looks like a reasonable document within the current legal and political contexts, and the nod to open-access digital non-profit educational repositories is nice (e.g., Wikimedia Commons) but I would rather see something a little more broad-minded.

    Scholars are not the only people who want (and ought to have) unrestricted access to digital images related to cultural heritage, and even if contract-based limitations on PD image use is legal (arguably not, in the U.S.), it’s not a practice that should be encouraged or tolerated without complaint.

  11. I had the same issues and conversation with James Rogers, the Senior Librarian at the Denver Public Library.

    Mr Rogers insisted: “I have read your concerns dealing with the copyright of DPL’s digital images and wanted to address these.

    You have by now read our copyright statement: All images from the Denver Public Library collection are copyright © protected and may not be reproduced in any way without permission from the Denver Public Library. Commercial use of images is subject to service fees. We require that all images be credited to the Denver Public Library, Western History Collection.

    There are several reasons we have copyright on our images. The library owns the original images and they were either purchased or donated to the library. The images were then digitized. Because the original images were digitized, they are derivatives of the originals and thus they are not in the public domain.

    The library charges a service fee for customers to use our images. This fee covers the cost of digitization, preservation and maintenance of our digital images. While the library cares for the images, they are actually owned by the City and County of Denver and its citizens. It is only fair that if you use our images for personal use or to make a profit that you give something back, thus the service fee.

    We have communicated with and passed your concerns to the Denver City Attorney and feel we are on solid ground with our policy.”

    I explained that, under copyright law, a duplicate copy is not a derivitive and thus not copyrightable. Doing so illegally renews or extends and expired copyright and effectivly takes the image out of the public domain. Denver Public Library not only illegally charges “use fees” and claims copyrights on public domain images but it also sets conditions for use and “grants” license for one-time use.

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