the use of Aaron Swartz photographs

After Aaron Swartz committed died by suicide in January, and in the months since then as issues of internet freedom and his own tragic story have continued to make news, there’s been a lot of demand for photos of Aaron. I had three photos of him up on Flickr and Wikimedia Commons, from a 2009 Wikipedia meetup.

(I went back to my archives and found several more from that meetup.)

When I got contacted by photo editors who wanted to use these photos, I tried to get them to follow the terms of the CC-BY-SA license. In two cases, Rolling Stone and New Republic, I got a chance to explain how to use a Creative Commons license in print. For most photo editors, free licenses are a big unknown, but lately (in my anecdotal experience) they’ve been more willing to use and follow the licenses than in years past. Here are the spreads.

Top: The New Republic, 11 March 2013. Bottom: Rolling Stone, 28 February 2013

I’ve tried to follow how these photos have been used online, as well, to understand how–and how well–freely licensed images are used by news websites. Of the 42  uses I’ve looked at there are:

  • 6 that follow the license, or come close enough. (If they include a link to the original on Commons or Flickr, I count it as close enough, since others will be able to find all the attribution and license info, even if the reuser isn’t following the license to the letter.)
  • 9 that provide attribution to me, but do not follow the license (ie, there’s no indication that the file is freely licensed).  Among these is the long Slate profile that is also sold as a Kindle ebook… but with no attribution in the ebook that I can tell.
  • 9 (most of which credit me) that add an illegitimate attribution to photo agencies: DPA/Corbis, DPA/Landov and such. Among them: Business Week, New York Magazine, New Scientist, and Two from did not initially credit me, only the photo agencies, but the credits were updated after @wikisignpost contacted them. A few others still don’t. I’m not sure how the photo got appropriated into (I assume) DPA’s collection, but they seem to be distributing it widely and internationally.
  • 18 that provide no attribution. In addition to the Amazon ebook version of the Slate piece, the more significant places that don’t use any attribution include the Boston NPR station, Democracy Now, and a Fast Company piece by the project lead of Creative Commons Brazil.

Probably the most interesting use is this mixed media derivative (unattributed, and with no free licensing that I can tell) from a Hungarian website. If anyone knows the language and wants to try to get them to release it under a free license, please do.


The writer put me in touch with their photo editor, who sent me a screenshot from the Landov website, showing how my photo appears in the photo licensing database.The last part of the Caption section reads:

Photo: Sage Ross (Editor’s note: usable only under consideration of Creative Commons Lizenz CC-BY-SA 2.0 and will full reference) DPA/LANDOV

But the Comments/Restrictions section is blank, and the Photographers/Source line that news orgs would typically use just says SAGE ROSS/DPA/LANDOV. So basically they are charging news organizations for this photo and hiding away the fact that it’s not their photo to license in the normal way, and that if their customers want to use it, they actually have to follow the same rules as everyone who gets it for free from the original source.

How much should I charge for use of my photos?

That’s a question that’s been tough for me, as it is for a lot of amateurs with decent cameras who occasionally get the chance to make a bit of money through their photography. So just to provide some points of reference, I’ll share a few of my experiences.

This is the first photo I made money from:

Education, a stained glass window at Yale created by Louis Comfort Tiffany

An editor from New Scientist contacted me through Wikipedia. (I had actually released it public domain, but they wanted to license it directly.) I had no idea what to ask, which I think I told them, and I think the $300 I got for it was their first offer to me. (Actually, when the wire transfer came through, it was only $275, minus an additional $10 bank fee.) It was used as a half-page illustration in the middle of the 19 July 2008 issue. Given that this was their first offer, it was probably toward the low end of what I could have gotten.

In 2009, made $100 from another public domain photo, of a painting of the Great Fire of London. Parthenon Entertainment contacted me through Wikimedia Commons, and I explained that, in the US, my photo wasn’t even eligible for copyright, but that I would license whatever rights I might or might not have in the photo for $250. They said limited budget was why they turned to Commons in the first place, and they could just offer $100. I said yes and counted myself lucky.

Also in 2009, I got $50 for a shot of a Loring peach from Macore, a company that makes plant tags and labels for nurseries. They would have used the CC license if I was okay with with a website only credit, but they didn’t want to put a credit on the actual plant tag they made with it.

“Austin Joseph”, perhaps

In 2010, I discovered using TinEye that an digital textbook company was using an image I took of a sign-holding protester from a health care reform town hall meeting for one of their videos, without following the license. I sent them an email asking them to release video under the appropriate license… or alternatively, I’d take $400 for permission to use the image. They took that option. Unfortunately, I don’t know who the young man in the photo is (and of course, have no model release form, although that shouldn’t be necessary for the types of editorial use in an educational context that they are using it for). An anonymous editor tagged it on Commons as “Austin Joseph”, but that’s not much help.

Later in 2010, the journal Science published a portrait I made of historian Steven Shapin in a review of his book, crediting the image as “SAGE ROSS / WIKIMEDIA COMMONS” but without mention of the license. Since they really ought to know better (and they are pay-walled, and subscriptions are very pricy), I explained in an email to the editors how they had neglected to use a free license and attached an unsolicited invoice for $2000. I never heard back.

In early 2012, after I sent an email to the Pittsburgh Zoo about some photos of their beautiful infant gorilla, they put many of them up on their blog, and then the photos spread to ZooBorns. Then, I got contacted by; I ended up asking for and getting $200 for the use of four shots on their (then new) Animal Tracks blog. (Tragically, the baby gorilla died a few months later.)

In March 2012, I got a cold email from Envision Communications, a political ad firm that had seen a Tea Party protest photo of mine on a random blog. (Incidentally, the blog credited me by name, but didn’t follow the license.) They wanted to use it in a campaign commercial they were producing (for a Democrat). I figured it was time to aim higher with my pricing (and hey, TV!) so I think I threw out $1000. They said their budget would allow more like $150, and I ultimately got $175 for it (for use in only one commercial). The producer said he’d let me know once it aired so I could see it, but that must have fallen off his radar during the hectic campaign season. (UPDATE: I pinged them, and it turns out the spot didn’t end up running.)

UPDATE – 2014-06-07

I got contacted earlier this year by Cengage Learning, who requested to use three of my photos from tea party and health care protests for a journalism textbook. They asked for an invoice in the first email, so I said I would send one shortly for $1800. They said the maximum budget was $350 per photo, and corrected that to $300 shortly after. It took a few months, but I finally did get $900 for the three of them.

One trend I noticed is that I’ve gotten a lot of photo inquiries to my (now out-of-date) work email, even though it’s not the account associated with my photos on either Flickr or Commons. The takeaway, I think, is that people will use whatever email they find when they google your name or look at your profile, so if you want people to randomly offer to pay you for photos, it’s good to add your human-readable email address somewhere easy to find.

UPDATE – 2014-09-12

Since the previous update, I’ve licensed another photo, of my grandpa’s old hinny, for use in the 2nd edition of Carl Zimmer’s book Evolution. I asked for $300, and the photo editor said her per picture limit was $150. I wanted to test the supposed limit, so I said I could do $200; that apparently needed to be run by the publisher, but I ultimately got $175 (after a few weeks). Probably it wouldn’t be worth the risk for just the extra $25, but it was good to get that data point; in cases where I think it could fetch considerably more than the stated limit, I’ll definitely hold out in the future.

Aaron and Greg, and guerilla open access

Aaron Swartz, free knowledge hacker

Last week was the beginning of something that might end up pretty huge in the world of free culture, copyright and open access activism. Aaron Swartz, a free knowledge activist hacker with ties to the Wikipedia community, was indicted by the federal government for allegedly downloading millions of files from JSTOR (an academic journal database) with the intent to distribute them on P2P networks. The actual charges aren’t for copyright infringement or anything directly related, however. They are for wire fraud, computer fraud and related offenses based on the way he allegedly obtained the files, by connecting to the MIT computer network and setting up scripts that downloaded files and dodged attempts to cut off access.  (SJ Klein has a great overview of the charges and context.)  Aaron never released this trove of files, and has reportedly turned them over to JSTOR.

He may have been planning to, however. You can get some insight into his thinking from the Guerilla Open Access Manifesto, which essentially advocates widespread and systematic sharing of restricted scholarship.

(The original is offline, but an apparently complete version that may or may not be authentic showed up on pastebin recently.)

In response to Swartz’s arrest, Wikimedian and free software developer Greg Maxwell actually did release a trove of JSTOR files: the complete archive of Philosophical Transactions of the Royal Society (the longest-running scientific journal, started in 1665) through 1922. These have all entered the public domain in the legal sense, but not the practical sense. You can only get them under restrictive terms and/or for high prices (either through JSTOR or from the Royal Society).

You should read Greg’s whole essay. Here’s the conclusion:

If I can remove even one dollar of ill-gained income from a poisonous industry which acts to suppress scientific and historic understanding, then whatever personal cost I suffer will be justified — it will be one less dollar spent in the war against knowledge. One less dollar spent lobbying for laws that make downloading too many scientific papers a crime.

I had considered releasing this collection anonymously, but others pointed out that the obviously overzealous prosecutors of Aaron Swartz would probably accuse him of it and add it to their growing list of ridiculous charges. This didn’t sit well with my conscience, and I generally believe that anything worth doing is worth attaching your name to.

A lot of free culture and open access advocates draw a line between Aaron and Greg. Greg is praised for taking his stand, but few are endorsing Aaron’s alleged actions, only condemning the gross disparity between the charges and the alleged actions — while ignoring or opposing the argument of the Guerilla Open Access Manifesto. (That line between them is copyright law.)

Me, I’m not so sure. I’m not sure copyright law has enough moral force to be a meaningful distinction. I’m certainly not convinced terms of use have enough moral force to matter here. The bottom line is, the world of academic publishing and distribution is changing… but painfully slowly. Academic publishing isn’t cheap, professional-grade digitization of old journals isn’t cheap, and there’s no single fix for keeping everything people like about academic publishing and archiving (like peer review and professional editing and easily searchable databases) while getting rid of what we don’t like (like paywalls), without totally upending the industry. Greg-ites — who liberate public domain material — and Aaron-ites — who want to liberate all scholarship, copyright be damned — both have the same practical consequences: to push paywalls and organizations that rely on them closer to irrelevance, and to place the burden of organizing and indexing and providing access onto open knowledge communities and organizations (and big data companies like Google).

I lean toward thinking that’s a good thing.

Plagiarism and authorship

From a New York Times article, “Plagiarism Lines Blur for Students in Digital Age“:

…these cases — typical ones, according to writing tutors and officials responsible for discipline at the three schools who described the plagiarism — suggest that many students simply do not grasp that using words they did not write is a serious misdeed.

It is a disconnect that is growing in the Internet age as concepts of intellectual property, copyright and originality are under assault in the unbridled exchange of online information, say educators who study plagiarism.

Digital technology makes copying and pasting easy, of course. But that is the least of it. The Internet may also be redefining how students — who came of age with music file-sharing, Wikipedia and Web-linking — understand the concept of authorship and the singularity of any text or image.

Remixing, building on the work of others, collaborating (often anonymously), challenging the very premise of intellectual property… these are all happening.  And yes, the web makes plagiarism easier than ever to conduct (and to discover).  But is student plagiarism really coupled with changing conceptions of authorship?

I haven’t seen much evidence of that.  In the NYT article, I see instead people using plagiarism to attack values and ideas they don’t like.  For example, anthropologist Susan D. Blum, author of My Word!: Plagiarism and College Culture:

She contends that undergraduates are less interested in cultivating a unique and authentic identity — as their 1960s counterparts were — than in trying on many different personas, which the Web enables with social networking.

“If you are not so worried about presenting yourself as absolutely unique, then it’s O.K. if you say other people’s words, it’s O.K. if you say things you don’t believe, it’s O.K. if you write papers you couldn’t care less about because they accomplish the task, which is turning something in and getting a grade,” Ms. Blum said, voicing student attitudes. “And it’s O.K. if you put words out there without getting any credit.”

So plagiarism is a way to cast changing concepts of authorship and originality (and the politics of free culture that go with that) as moral failings.

Flickr, Getty Images, and revoking CC licenses

Flickr started a program earlier this year with Getty Images, in which Getty staff find great photographers and ask them to put some of their work into the Flickr Collection on Getty Images, so that Getty can sell rights to the images and pay the photographers when their photos get licensed.  As the Flickr blog explains, they are now expanding this program: photographers can submit portfolios of their best work to be considered for inclusion by Getty.

When I first came across this Getty Images-Flickr program a few months ago I noticed something interesting in the terms of the program, and it might be a lot more significant now that this program is ramping up.  The FAQ specifically addresses the issue of CC-licensed photos:

There is a chance one of your Creative Commons-licensed photos may catch the eye of a perceptive Getty Images editor. You are welcome to upload these photos into the Flickr collection on Getty Images, but you are contractually obliged to reserve all rights to sale for your work sold via Getty Images. If you proceed with your submission, switching your license to All Rights Reserved (on Flickr) will happen automatically.

If you’re not cool with that, that’s totally cool. It just means that particular photo will need to stay out of the Flickr collection on Getty Images.

But what happens if, say, Wikimedia Commons already has those CC images?  Are Getty and Flickr basically just looking the other way about the fact that in many cases it wouldn’t be possible for photographers to” reserve all rights to sale” on their freely-licensed works that are circulating in the wild, even if they wanted to?  What about intentionally making sure your CC images have been added to Commons and verified by the Flickr review bot before submitting them to Getty?

How freely licensed photos generally get used (a sequel)

Last year, I blogged about how freely licensed photos are used and misused across the web.  Figuring out how my photos are being used (as long as I’m being credited by name) is much easier now with the Google search options (rolled out in May 2009 and with more options added just this month), which let you limit search results to newly indexed pages.

I have over 3500 CC BY-SA photos on Flickr (including lots of family photos, abstract shots, and other stuff unlikely to be reused) and probably around 1000 original photos on Wikimedia Commons, generally available under both GFDL and CC BY-SA (and a good portion of which are not duplicated on Flickr).  At this point there is a fairly steady stream of reuse, most of which I’m not directly aware of (except when I go looking, like now).  I estimate that my ~4000 photos are put to new uses at  rate about 15-20 times per week.  Let’s see what types of uses my photos have been put to recently.

Searches (limited to results first indexed within the last week) for “ragesoss” and “Sage Ross” ought to turn up nearly all of the new cases where I’m being credited for photos.

As before, the most active user of my photos is World News Network (, a set of algorithmically-generated sites that are titled like local or special interest newspapers but basically just link to offsite news stories, add free photos, and run ads against the photos and headlines.  For example, this story about pesticides in peaches links to the actual story from The Oklahoman but adds my picture of peaches.  The credit reads “(photo: GFDL / Sage Ross)”.  Although I think a link back to the source or my Commons userpage (which is where the attribution link at Commons points) is appropriate, it probably doesn’t violate the letter of the license (which is already stretched thin when applied to photos and other things very dissimilar from software manuals).  In another example, they use a CC license instead of the GFDL for my photo of coffee beans.  In this case, the credit reads “(photo: Creative Commons / Ragesoss)”, with no link to the specific license or the source.  This violates both the spirit and the letter of the CC BY-SA license.  World News Network has used my photos hundreds, maybe thousands of times, and I’m sure many other photos from Commons by other Wikimedians are being systematically (mis)used similarly.

Another common type of usage is from the many sites that are trying to monetize user-generated content and share the ad revenue between writer and website owner.  In these cases, it’s the individual writers who are responsible for obtaining photos (and rights thereto), so compliance with free licenses varies widely.  I found my photos on articles from and  The suite101 article, “Free Instructions on How to Make an Apple Pie“, uses a series of photos I took while my sister was making pie.  All the photos but one are credited to me and link back to the source on Commons, although no license info is indicated at suite101; this violates the letter, but not the spirit, of the CC licenses.  Oddly, the lead apple pie image is misattributed and links to an entirely different pie photo from a quasi-free stock photography site; the writer probably used that image first but then replaced it when she found my photos.  At HubPages, the article “Health Insurance Rescission and How To Fight It” uses my photo but merely credits it as “Photo by ragesoss” with no link or license information.  AssociatedContent is another site like that where my photos show up frequently; they seem to be better than most at following the provisions of free licenses.

Blogs use my images somewhat less frequently.  Recent uses include this entry in the Utne Reader “Science and Technology” blog (which does a great job with the credit line, linking to both source image and the specific CC license) and this one from the Choices Campus Blog (which has the mediocre credit line “Photo Credit: ragesoss at” with no link).

A final significant category of uses is in articles from professional news and content sites.  Overall, these sites are somewhat more likely to use freely licensed images properly, but sloppy or improper uses are still common in my experience.  The only recent credit I found is from the CNBC story “GE, Comcast Continue Talks Over NBC Stake“.  The unlinked credit line simply reads “Photo: Ragesoss”, but the photo is one of my few early photos on Commons that I released as public domain rather than a copyleft license.  So CNBC doesn’t have any legal obligation to give a more precise photo credit (or even to credit me at all), although if only for the sake of journalistic integrity they probably ought to do better.

Conclusion: People use freely licensed photos liberally from Flick and Wikimedia Commons, but there isn’t much indication that most reusers understand what the licenses mean or what they require from reusers.  The free culture movement has a long way to go; cultural change is a lot slower than license adoption.

On a tangent, it’d be nice if Wikimedia Commons was equipped with something like refbacks combined with image recognition to automatically discover and collect web pages that are reusing Commons media.  I think I’ll make a proposal on the Wikimedia Strategy Wiki when I get a chance.

Wikipedia and Olympics Committee heading for collision?

CC-BY-SA photo of Usain Bolt, by Richard Giles

It looks like Wikipedia is  actually at the center of the recent copyright kerfluffle of the photographer (Richard Giles) who got a legal threat from the International Olympics Committee (IOC) over licensing his images from the Beijing Olympics under Creative Commons licenses.  Giles explains the situation on his blog:

It turns out that my Usain Bolt photo was being used by a book shop in the UK to advertise the launch of the Guinness Book of Records 2010. This was being done without my knowledge, and as they pointed out, in breach of the license granted on the Olympic ticket.

That photo was the only one of 293 in the set on Flickr that was licensed with a ShareAlike license (allowing commercial use) rather than a non-commercial license, and Giles had relicensed that particular photo at the request of another Flickrite so that it could be uploaded to Wikimedia Commons and used on Wikipedia.  And Wikipedia is probably where that UK merchant found it and, assuming the license to be legitimate, used it (so it would seem) under the terms of the free license.

Giles reports that it looks like the IOC really just objects to licensing that allows commercial use.   Depending on what the IOC says in response to his request for clarification, Giles may be changing the license on that Usain Bolt photo and asking the UK merchant to stop using it.

What happens now?  By buying a ticket to the Olympics, Giles’ appears to have (implicitly at least) agreed to terms and conditions that say he won’t use photos from the games except for private purposes.  But he does own the copyright to the Bolt photo, and therefore ought to (except for those terms and conditions) be able to license it however he likes.  Will the fine print of an Olympics ticket be strong enough to force Wikimedia (which agreed to no terms and conditions) to stop using the photo and offering it to other downstream users?

The most insane bit of U.S. copyright law?

I knew about many insanities in U.S. copyright law, but I just came across something that is so absurd and unjust it makes me queasy.

My dad is a professional musician; he plays blues and jazz and original piano music, and has made five records. For professional musicians outside of pop music (and often in pop as well), copyright law is already simply a burden to the point that it is almost universally ignored. Gigging blues and jazz musicians have long used “fake books“, unauthorized charts of the melodies, lyrics and chord structure of jazz standards. No one is worried about other musicians infringing on their copyrights, because jazz and blues (among other genres) are rooted in a culture of borrowing and adaptation. It’s inimical to creativity to draw sharp lines between what can and can’t be borrowed or adapted, and indeed in academic jazz programs one learns to improvise by practicing the great “licks” on classic recordings.

But my dad, being the upright citizen that he is, has stuck with original compositions and reinterpretations of public domain classics on his albums. One classic he put on a 2004 album is “Love in Vain Blues”, a Robert Johnson tune that was first recorded in 1937. Johnson died in 1938, and the original recording was published on vinyl phonograph in 1938 or 1939 (without a copyright notice) and not renewed after the then-standard 28-year copyright term had ended.

But as the result of a series of utterly insane laws and court decisions, it turns out that the song may be under copyright through 2047. Today, issuing as sound recording is considered publication. But according to the 2000 decision in ABKCO v. LaVere, sound recordings published before 1978 don’t count as publication. So despite the publication, re-publication, and widespread adaptation of Johnson’s “Love in Vain”, it was never “published” before 1978 because there was no sheet music. And because it was created earlier but “published” first between 1978 and 1989, the crazy rules go into effect. (ABKCO is the record label for which The Rolling Stones recorded some Robert Johnson songs; LaVere is the man who in 1974 tracked down Johnson’s surviving heir and made a deal to pursue royalties for Johnson’s music in exchange for half the takings.)

Here’s a great article on the Robert Johnson copyrights: “Borrowing the Blues: Copyright and the Contexts of Robert Johnson“, by Olufunmilayo Arewa.


Here’s another excellent article, arguing “that ABKCO, as well as the 1997 amendment to the Copyright Act that precipitated ABKCO, are legal anomalies that frustrate the intent of the Constitution.”

I just talked to my dad about it. He says “bring it on”. You can hear his version of “Love in Vain” at thesixtone, and on Wikipedia as soon as I transcode it. It’s pretty clear to anyone who a) knows how blues works, and b) knows anything about Robert Johnson and the lack of documentation about whether he even composed any particular song attributed to him, that there’s no basis for copyright claims on this stuff.

Database right and the NPG threat

The National Portrait Gallery’s legal threat against Wikimedian Derrick Coetzee alleges four things:

  1. Copyright infringement
  2. Database right infringement
  3. Unlawful circumvention of technical measures
  4. Breach of contract

The copyright issue, of course, is the center of the dispute. UK law is unsettled on whether mechanical reproduction of a public domain work is eligible for copyright.

IANAL, but breach of contract and unlawful circumvention both seem moot if there is no copyright infringement. A bit of text at the bottom of page (with no mechanism for the user to acknowledge or refuse) setting restrictive use terms for something that is public domain wouldn’t hold much weight. Likewise, even apart from the fact that Zoomify is not a security measure and arguably was not “circumvented”, if the images are public domain then simply collecting and stitching together tiles from those images (whether automatically or by hand) is perfectly legitimate.

Database right, therefore, is the only thing does not turn on whether ‘sweat of the brow’ copyrights hold up. The law here seems vague, but again, IANAL. The key question is what constitutes a “substantial part” of the contents of the NPG’s database. If the paintings themselves are public domain, then the mere unorganized collection of them ought not infringe on the database right, but depending on how much metadata and categorization comes from the same database, porting images to Wikimedia Commons might cross the line. For the images at hand, it looks like the amount of metadata is modest: subject, author, date, and author’s date of death. The NPG database contains significantly more information: medium, size, provenance, and other contextual information, as well as links to related works and people. It is also possible that Coetzee’s actions fall under the “exceptions to database right“:

(1) Database right in a database which has been made available to the public in any manner is not infringed by fair dealing with a substantial part of its contents if –

Self-preservation and the National Portrait Gallery’s dispute with the Wikimedia community

Running an organization is difficult in and of itself, no matter what its goals. Every transaction it undertakes–every contract, every agreement, every meeting–requires it to expend some limited resource: time, attention, or money. Because of these transaction costs, some sources of value are too costly to take advantage of. As a result, no institution can put all its energies into pursuing its mission; it must expend considerable effort on maintaining discipline and structure, simply to keep itself viable. Self-preservation of the institution becomes job number one, while its stated goal is relegated to job number two or lower, no matter what the mission statement says. The problems inherent in managing these transaction costs are one of the basic constraints shaping institutions of all kinds.

From: Clay Shirky, Here Comes Everybody: The Power of Organizing Without Organizations, pp. 29-30 (my emphasis)

Shirky’s book is about “organizing without organizations”, a key example of which is the Wikimedia community (as distinct from the Wikimedia Foundation). The Wikimedia community can accomplish a lot of big projects–making knowledge and information and cultural heritage accessible and free–that traditional organizations would find far too expensive. And that paragraph from Shirky explains the root of the tension between the Wikimedia community and many traditional organizations with seemingly compatible goals–organizations such as the National Portrait Gallery in London, which sent a legal threat to Wikimedian Derrick Coetzee this week.

The NPG has a laudable mission and aims: “to promote through the medium of portraits the appreciation and understanding of the men and women who have made and are making British history and culture, and … to promote the appreciation and understanding of portraiture in all media”, and “to bring history to life through its extensive display, exhibition, research, learning, outreach, publishing and digital programmes.”

But in pursuing self-preservation first and foremost, the gallery asks a high price for its services of digitizing and making available the works it keeps: to fund the digitization of its collections and other institutional activities, the NPG would claim copyright on all the digital records it produces and prevent access to others who would make free digital copies. As one Wikipedian put it, the NPG is “trying to ‘Dred Scott‘ works already escaped into PD ‘back south’ into Copyright Protected dominion”.

If the choice is between a) waiting to digitize these public domain works until costs are lower or more funding is available, or b) diminishing the public domain and emboldening others who would do the same, then I’ll choose to wait.