Okay folks, here's the deal. I have a website that displays thousands of historical images (some in the public domain, some not) from the early 1800s to the mid 1940s. I am guessing that most of these images were government works (e.g. government hired photographers, military photographers, etc). First, some questions about copyright: 1.) Can I publish Civil War photos on my site that were taken from, say, the University of Maryland's archives? The University says that I can not do so. But, my site falls under the "Fair Use Doctrine" under U.S. copyright law that provides for the licit, non-licensed citation or incorporation of possible copyrighted material. This means that those images, according to US law, can only be used by my website for purposes such as criticism, comment, news reporting, teaching, scholarship, or research and is therefore not an infringement of copyright as this website's sole purpose is to educate and research the Civil War era. 2.) With that said, can I safely display these photos on my website? How can the University tell me what I can't do with these photos if they were taken by government entities during the Civil War? What if someone had a collection of their photographs that their grandfather took during World War I and then donated them to the University. Can the University copyright these photos even though the grandfather took them for the government? But, what happens if the grandfather took these photographs for his personal use during WW1 (or WWII). Does that make it "government works" and is therefore still required to be in the Public Domain as per the copyright law? And, finally, lets say I have a bunch of images on my website that are not in the public domain, but falls under the "fair use" doctrine....and what if I run a bunch of popunders, adsense, etc and make a killing off the traffic? I am therefore making money...but I am not selling the photos...am I still breaking the "fair use" doctrine by making money this way? I look forward to hearing your feedback. I think I am walking on very shallow water and may need to start rethinking some of my marketing approaches. Thanks for your time.
There is a very simple answer when it comes to copyright law: You have no rights unless you can afford to stand in a court and prove that you have those rights. You may believe that something can be used under Fair Use, but if someone wants you to stop using their material you either have to stop using it or go to court and demonstrate why your use classes as Fair Use (having paid advertising on the site would certainly compromise your argument). The same applies if an organisation thinks they own the copyright to something when they actually don't (quite possibly the case for some of the examples you give above) - unless you're prepared to demonstrate why they don't own the copyright, they own it. I would suggest that you either: 1. Stick to public domain material and get permission for anything else you want to use or 2. Get professional legal advice
I also have a historical site so I have done extensive research in this area. I found one very useful fact: anything published before 1923 is no longer copyright protected in the United States. Thats right, if it was published before 1923, its fair game. I have also seen a lot of organizations claim copyright on works published before 1923. I think that these organizations: Have blanket statements covering works that were published before and after 1923. Are simply claiming copyright protections because they know that most people do not know the law. Are ignorant of the fact that works published before 1923 are no longer copyright protected and are falsely assuming that because they own the originals, they are entitled to copyright protections. The only way to protect older works against distribution is to control access to the original files. BTW, I'd like to see your site, can you PM me the URL?
Dirty Dog is right. No site or company can claim copyright on anything published in 1929 or earlier. Yep, 1929. It's 75 years from the current date. So next year it will be 1930 or earlier. They can't sue you no matter what their website says if the image was published before that date. I'm going through a similar situation so I've researched this.
The problem with that is that many organisations do claim copyright on older images, as they believe the act of digitising them gives them a copyright. In the US it doesn't (see Bridgeman Art Library v. Corel Corp.) but in other parts of the world (e.g. the UK) it does. As I was trying to say above, the fact of the matter is that if an orgainsation (rightly or wrongly) believes they have a copyright on something you're using, you have to be prepared to remove the image from your site or prove in a court why you have rights to use the image.
Right the work is pd , but a work derived from it is not. So to get access to the pd version for sure you need to start from the source material, if you are downloading their digitized work, I can assure you it was not digitized before 1923. I would also for the most part forget fair use, it is actually until/unless Google wins its lawsuit very narrow in scope.
Whether a derived work is also public domain depends on whether the derived work is a straight copy (in the case of digitised versions of photographs) or has some originality. If the derivative work has no originality, it is not eligible for copyright (under US law) and is therefore public domain like the original work.
The only thing more dangerous than taking content that a large corporation doesn't want you to take is listening to legal advice about it from random people on a forum.
Yes, but the question as to what is originality is not settled yet. After all it has been settled that taking a picture of something is a protected work, is that far removed from the scanning process? Could the processing in the scanning be creating a unique version? Do you want to be the test case?
There has already been a test case for digital versions of public domain works which I mentioned above: Bridgeman Art Library v. Corel Corp.
Thats interesting, as just last month I found references to two pending cases. Neither mentioned this precedent... good to have the reference to it. thanks.
Thanks for the feedback guys, I appreciate. I was not checking this thread for a while since no one replied. But now it looks like they have. Also, I have lots of public domain images from the earliest photographs (1840s) and I have been told to take them off the site because it is owned by a University, etc. So.....it's not gonna matter how old something is...if a corporation paid for the right to own a piece of history, they can apparently sue. Sucks! Another example is to check out the huge collection of 1800s photographs owned by GETTY. They bought them all out.
They can sue but they can't win. They're just trying to scare you. Also, photographs of artwork like photos of the Mona Lisa or a photo of ANY pre-1929 in the Getty is fair use. As long as the photo isn't considered an artwork in and of itself. All of this legal info is online. Check out the fair use stuff posted on Wikipedia, too. Oh, I forgot: any photograph taken by the U.S. government is copyright-free and anything published overseas because foreign copyright laws don't apply in the United States. I needed a photo of Mariah Carey for a project and was able to use a government photo of her visiting the troops.
I've discussed this with lawyers on a law forum, and then did my own research based on what I learned there. It's really a black and white issue. Images published before 1923 are not copyright protected in the United States. A scan is not an original work. If it was, you could simply take a screen capture of the digitized image and call that your original work. Or you could photograph the computer screen. Obviously that doesn't make sense. That 75 year thing is not entirely true. It is true that the 1923 date is based on a determination that was made in the Nineties but I think the rules change a bit for newer works. I'll refresh my memory on that and post again. However, there is one thing to keep in mind. Just because a company doesn't have a valid copyright on a work doesn't mean they can't sue you. They may not have the law on their side, but you would still be forced to defend yourself which could be a daunting and expensive process. Legal bullying is an industry in this country.
We signed the Berne convention in 1986 I think it was. The means we honor many other countires copyrights. Also images of people have other considerations besides copyright, especially for people who make a living from their image.
The Sono Bono copyright extentsion act changed the rules, nothing has entered the public domain by expiration of copyright since that has passed and won't for awhile yet. Also, do not confuse direvative works with orginal works. They both can get copyrights but the latter requires a grant to distribute of rights still from the orginal work if it has not already fallen into the public domain. You can also get a compilation copyright on a body of public domain works.
So, why I can't I put these photos on my site even though the photos are from 1849? Is it the SCAN process that is copyrighted? http://www.cah.utexas.edu/exhibits/TexasExhibit/Texas1.html
Maybe you can, it says When crediting the use of portions of our site or materials within it that are in the public domain or clearly created by us, please use: "Courtesy of The Center for American History, The University of Texas at Austin." If you are unsure about proper usage of our Center for American History content, please contact the Research & Collections Division. on the site, have you contacted them for clarification of things? Maybe they are just viewing their annotations as copyrighted?