This page addresses a widespread and increasingly common problem, often perpetrated by publicly funded universities, libraries and museums.
I recently did some research about my ancestors. While searching the Internet, I found a photograph of a well known cousin who died in 1881. Since the photograph had to be at least 130 years old, I am quite sure any copyright of the image has long since expired and the image is now in the public domain, meaning that it is free to use by anyone without permission. (See my page on Copyrights for more information about copyright durations)
The photograph in question happened to be part of a collection of photographs now owned by the Denver Public Library. I do not know if the Library purchased the collection or if it was donated to them. Either way, the Denver Public Library may own the physical photograph, but it DOES NOT own the (expired) copyright and therefore has no authority to grant permissions, set conditions, or charge fees for the use of the image.
I wanted a high resolution copy of the image to accompany a story I was writing for publication in a magazine. The Denver Public Library website included instruction on how to order copies of the photograph. However, it also included a claim of copyright ownership, conditions for use, and "use fees" in addition to charges for making a copy of the photograph.
Specifically, the Denver Public Library website www.digital.denverlibrary.org states: (My emphasis underlined)
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. Please refer to the price list for commercial and private use, listed below.
Use Fees Per Image (For quotes on larger publication runs please contact the Photo Sales Department)
I have no objection to paying the requested $19 fee for making a copy of the photograph. I understand that the library has operating expenses to catalog, scan, and publish the photograph. They also charge for making prints or burning images to a CD ($5.00 for a $0.25 CD) and for postage.
I emailed the contact listed on the Denver Public Library website and explained that I wished to obtain a copy of the image for publication in a small non-profit magazine with a circulation of less than 10,000.
Ms. Coi E. Drummond-Gehrig, Digital Image Sales and Research, Denver Public Library, Western History/Genealogy responded via email with the following: (My emphasis underlined)
"I am attaching the photo order form for you to fill out. Just fax it back with credit card information or mail with a check. The costs associated with the image plus rights are: 19.00 for the image 5.00 for the CD 15.00 for the use 6.00 mailing. 45.00 grand total Thanks Coi"
I replied that I preferred having a high resolution copy sent to me by email rather than delivered on a CD. I also questioned why they would be charging $15 for "use" of a public domain image.
Ms. Coi E. Drummond-Gehrig replied: (My emphasis underlined)
"The images themselves are in the public domain. We've taken them and put them online to help maintain and archive our collection. This allows us to be able to scan and add addition images to the online collection. This provides access that normally a person would have had to fly into Denver and view the folders to see what we had. But even then we charged for images and permissions. Thanks Coi"
I again responded:
At this point, the matter was forwarded to James Rogers, Senior Librarian, Western History/Genealogy Dept., Denver Public Library. Mr. Rogers then replied with the following email: (My emphasis underlined)
There is a serious problem here. First, once a copyright has expired and an image is in the public domain you cannot reinstate, renew, or extend the copyright nor claim a new copyright on a copy of the original image. Derivative works can only be copyrighted if something new has been added to the original work and even then only the new material can be copyrighted and not the original content. Secondly, since the Denver Public Library cannot legally claim copyright of the public domain image, it cannot set conditions or charge fees for the use of the image. THIS IS COPYFRAUD! It is also a rip-off by charging the public fees that the library is not entitled to.
From the U.S Copyright Office:
U.S. Copyright Office Circular 14: Derivative Works http://www.copyright.gov/circs/circ14.pdf
"To be copyrightable, a derivative work must differ sufficiently from the original to be regarded as a new work or must contain a substantial amount of new material. Making minor changes or additions of little substance to a preexisting work will not qualify a work as a new version for copyright purposes. The new material must be original and copyrightable in itself."
"The copyright in a derivative work covers only the additions, changes, or other new material appearing for the first time in the work. It does not extend to any preexisting material and does not imply a copyright in that material. One cannot extend the length of protection for a copyrighted work by creating a derivative work. A work that has fallen into the public domain, that is, a work that is no longer protected by copyright, can be used for a derivative work, but the copyright in the derivative work will not restore the copyright of the public-domain material. Neither will it prevent anyone else from using the same public-domain work for another derivative work."
False Representation of Copyright: http://www.copyright.gov/title17/92chap5.html#506
(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.
I clearly explained all of this to Mr. Rogers at the Denver Public Library. I quoted the copyright law exactly and even provided links to the law on the government's U.S. Copyright Office website www.copyright.gov. I again made it clear that I was perfectly willing to pay a reasonable fee for the library's efforts in making a copy of the image and emailing it to me (even though I am sure it was already scanned and stored in high resolution and would only require the effort of somebody to email it) but I refused to pay a "use fee" or agree to conditions for use of a public domain image.
Mr. Rogers remains steadfast in his insistence that the Denver Public Library owns the copyright of the image and I must pay their "use" fees and agree to their conditions for use.
I wrote to the Denver city attorney and received no response.
I also wrote to the Denver Better Business Bureau and they did open a complaint case (Case#75145228). Jim Kroll, manger of the Western History /Genealogy Department of the Denver Public Library responded to the Better Business Bureau that the image in question was not in the public domain (false) and that I was wanting a high resolution copy of the image for free (false).
I have since found that Copyfraud is all too common of a practice at many libraries (public and universities) and many museums. Some such cases have been tried and the courts struck down the false claims of copyrights. See: The Bridgeman Art Library, Ltd., Plaintiff, - versus - Corel Corporation, et ano., Defendants. http://www.law.harvard.edu/faculty/martin/art_law/bridgeman1.pdf . Google "copyfraud" and you will find many references to this illegal practice.
The problem is growing as large retail websites are committing the same frauds with public domain books, music and other works of art. For example, some large online retailers are making digital e-book copies of public domain works and then claiming copyrights on them, effectively taking them OUT of the public domain.
Unfortunately, even though copyfraud is clearly illegal under the federal copyright laws, nobody is enforcing the law and the law itself provides no specific penalties for violation except for fines of up to $2,500 for "notice of copyright or words of the same purport that such person knows to be false". So, these institutions continue to practice copyfraud, effectively taking historic documents and images OUT of the public domain illegally and charging the public for using property that they do not own and have no right to charge. They also continue to create conditions for the use public domain materials when they have no authority or right to do so. This is not only a rip-off but it stifles historic research and documentation and defeats the whole purpose of public domain.
Many of these institutions that are perpetrating copyfraud are publicly funded institutions. They are using your tax dollars to operate and then ripping you off by charging you fees for public domain materials. They are claiming copyrights on public domain materials when it is clearly illegal to do so.
Sooner or later someone is bound to file a class action lawsuit against one of these libraries and if the court finds them guilty they may be required to refund ALL of the "use" fees that they have ever charged anyone for use of public domain images and may further be penalized for illegally claiming copyrights and creating conditions for the use of public domain materials. When such a case is filed, count me in!
Of course, even if a library was forced to refund their ill-gotten gains (could easily be millions of dollars), it would come out of your tax dollars anyway. So again you would be ripped off.
To be fair, I have seen the website of at least one university library that has gotten the message or at least understands the law and clearly states they they do not charge use fees for public domain materials. Cornell University Library's website http://cdl.library.cornell.edu/guidelines.html states "Much of the material reproduced or distributed by Cornell University Library is believed to have no known U.S. copyright or other restrictions. The Library does not charge for permission to use such material and does not grant or deny permission to publish or otherwise distribute public domain material in its collections."
Copyfraud Related Links: