A nonprofit organization recently challenged the Smithsonian Institution’s use of copyright notices and other warnings in conjunction with its images on the Smithsonian website. The Smithsonian is a government entity and section 105 of the Copyright Act states that copyright protection is not available for “any work of the United States Government.” If the image is produced by an employee of the Smithsonian, why does it claim copyright?
The question is a bit complicated, naturally. Works produced by Smithsonian employees who are federal employees are considered to be in the public domain. Trust fund employees who create works may result in a copyrighted work which the Smithsonian may own or may share with the employee. See Protection of Intellectual Property.
Nonetheless, when one goes to the Smithsonian website to view the images, there is a detailed images copyright policy http://www.si.edu/copyright/ which begins by saying the “Content is protected by Intellectual Property Laws” and is the property of the Smithsonian. On the other hand, fair use is permitted. (Is that not the law for copyrighted images?) More importantly, if the Smithsonian is a government entity would the works not be in the public domain anyway?
A detailed Image Reproduction Fee schedule is available on the image pages on the website.
Again, if the works are public domain why the fee schedule? The following statement appears on the Permissions page:
Licensing and imaging fees directly support our collections and projects. Licensing also helps to maintain the integrity of our collection by regulating where and how our images may be used. Smithsonian Libraries provides free and open access to its digital images and the images may be freely downloaded for personal, research and study purposes only.
No wonder there is some confusion about whether the Smithsonian Institution claims copyright in its images.
On May 19, 2007, Public.Reource.Org announced on its website that it had taken matters into its hands and downloaded almost 6300 Smithsonian images “of national significance” and uploaded them onto flickr.com. Its stated purpose in taking this action is to get the Smithsonian to adopt an online distribution of images policy that is better aligned with its mission.
The Smithsonian’s fee for use of images raises many issues for libraries, archives and scholars who want to use images in their publications. Are these publications commercial? Does a scholar who uses an image in a scholarly monograph need to pay the fees because the book is published by a commercial publisher? More importantly, should these images not be in the public domain – they are part of our national heritage.
There are many rewards, but also certain obligations that come with public status. Just as the U.S. Congress could not turn the video from congressional hearings into copyrighted materials, so our Smithsonian Institution lacks the right to encumber the public domain that is our nation’s attic.
Comments (6)
Thanks for the great write up about this compelling topic. I've already concluded, perhaps too quickly and perhaps unfairly, that the Smithsonian has joined a growing list of institutions that are attempting to take public domain works back into the private domain. Those institutions seem to justify this based on a desire to raise well-needed revenues.
My instinctual reaction (as distinct from a well-reasoned analysis based upon oh, I dunno, laws and facts, I suppose) is that the Smithsonian is trying to exercise a set of prerogatives that can only be exercised by copyright holders. And that they're not a copyright holder in much of this material. And that this kind of overreaching is now common in the non-profit sector, including those parts of the non-profit sector, public and private, that have assumed responsibility for the preservation of parts of our common cultural heritage. In my crabbier moments I've concluded that this overreaching is a kind of hijacking of culture from the public domain back into the private domain.
The people at Public.Resource.Org appear to be performing a long-overdue public service, and this issue is now well met. I'll be fascinated should this go to court. The Smithsonian is one of several noble civic institutions following too closely, I suspect, in the footsteps of The Walt Disney Company. Nevertheless I'm ready to be persuaded otherwise.
Walter Dufresne
Brooklyn, New York
Posted by Walter Dufresne | May 31, 2007 3:50 PM
Posted on May 31, 2007 15:50
This is an interesting question - it's funny how many boundaries are being challenged by our increased use of the internet for access to the information and resources we want. I think images is an area where we will see more and more legal action over time. The Smithsonian is in a somewhat unique position - like you pointed out, they are a part of our government and yet they do want to be able to raise revenue through the works they control. It will be educational to watch this unfold. I have started to include copyright info on my blog photos since they all get loaded to Google images and then many people believe if it's on the internet it's free - I know MD real estate agent that keep a lawyer on retainer collecting damages from those who copy her original maps from her blog. Looking forward to your updates as this moves forward.
Posted by Cyndee Haydon | February 13, 2008 7:26 PM
Posted on February 13, 2008 19:26
I just saw the photos on Flickr - they are fabulous - I'm glad they are getting shared!
Posted by Cyndee Haydon | February 29, 2008 12:16 PM
Posted on February 29, 2008 12:16
Very interesting. I had never really considered this. Copyright issues are so often overlooked online. I guess because everything is so easy to download, we just consider that if we can do we should do it.
Posted by Mary McKnight | March 5, 2008 8:25 AM
Posted on March 5, 2008 08:25
This is a fascinating topic, and very confusing. I worked for a government organization and it was agreed that anything an employee of this organization produced became the property of the government. I never knew it would be considered public domain, but never really thought about it. I am talking about program code vs photography, so maybe there is a difference. I've forgotten now how I came across this article, but glad I did, even at this late date. Since I use a lot of pictures on my blog, this topic is something that begs more research. Thanks for posting.
Posted by Karl Burger | March 5, 2008 8:47 PM
Posted on March 5, 2008 20:47
Copyright laws are flagrantly disregarded on the internet. Many don't even know that images are protected. It will be interesting to watch this unfold. Off to see the lovely images...
Posted by Laurie Manny | March 29, 2008 7:27 PM
Posted on March 29, 2008 19:27